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Roe v. Wade, or how NOT to make laws

18 December 2021

I am a bit hesitant writing this blog entry. My progressive friends may get upset, given the current political climate in the US. So, just to make sure: I fully support a woman’s right to choose to have an abortion. I consider the so-called “pro-life” movement a bunch of right-wing hypocrites who care about fetuses more than about actual living children and their welfare. This post is therefore not an attack on abortion rights. Rather, it is a criticism of the way those rights were instituted in the US in the 1970s.

Abortion is an important public policy issue, and like other important public policy issues it should be decided through the political process. In democratic countries, this means an act of the legislature or a referendum. This is how abortion became legal in most democratic countries. The debate is always difficult, since abortion is an issue that involves religious beliefs, women’s rights, ethics and so on. In my country, Denmark, abortion became legal through an act of Parliament in 1973. The opposition was strong and emotional. The photo below shows two of about 30 Lutheran priests who were in the spectators’ gallery, praying for the law to be voted down. In the end, free access to abortion became law with a narrow margin of 96 votes for in the 179-seat Folketing.

Another example is Switzerland, one of the last European countries to make abortion universally available. This happened through a referendum in 2002. Most recently, abortion became legal in Ireland in 2018. In the then West Germany, abortion became legal in 1974 through an act of the Bundestag (although it was later struck down by the Constitutional Court and had to be revised in 1976). East Germany actually had more liberal abortion laws, enacted in 1972, and after German reunification, the two sets of legislations were reconciled in 1992.

The point of all this is to illustrate that important social issues like abortion are resolved through the political process in all democratic countries–with one glaring exception. In the USA, abortion became legal through the Roe v. Wade decision of the US Supreme Court in 1973. The court decided, by a 7-2 majority, that the 14th Amendment to the US Constitution guaranteed a woman’s right to have an abortion. Predictably, in the 50 years since that decision, abortion has been and continues to be one of the most contentious and polarising issues in American politics. While in other countries the issue more or less goes away once it is resolved in the political arena, in the USA it has continued to poison public life in many ways. Women who seek abortions and the clinics that provide them are subject to threats (some of which are occasionally carried out), countless confrontations occur in the political arena and elsewhere. This is no way to make laws.

And now, the US Supreme Court has a clear anti-choice majority. It is only a question of time before Roe v. Wade is either overturned outright or significantly weakened. While I think this is a bad thing, I do not share the view that it is the disaster many on the American left think it is. The issue will end up in the political arena in the various states, and this is how it should be in a democracy. Laws should be made by the people and their elected representatives, not by 9 unelected judges. This does not mean that there is no role for the Supreme Court. Its job is to interpret the laws passed by the legislatures and strike down those that go against the Constitution, as it did, for example, in the Brown v. Board of Education decision in 1954, in which it ruled that racially segregated schools are inherently unequal and therefore their existence violates the Constitution.

So what will happen if Roe v. Wade is overturned? In some states abortion will be legal, in a few it will be made illegal. That is unfortunate but that is the nature of the federal system in the USA. There are differences among the states in many other important areas, including some that literally involve life and death: some states have the death penalty, others don’t; some states allow euthanasia, others don’t; some states have no income tax; some states allow recreational use of marijuana, and so on.

As much as I hate to agree with conservatives on anything, I do agree on this: courts should enforce laws, not make them.

One Comment
  1. Dan wajsman permalink

    I could not agree more. As long as abortion rights was based on a Supreme Court decision instead of law it was vulnerable and women were vulnerable.
    One of my biggest disappointments w Obama administration was when he had control senate and house they didn’t make it law or land.

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