I was in my final year of high school when the United States Supreme Court handed down its controversial Roe v Wade decision, declaring a constitutional right to abortion and unifying the abortion licence across the country. To understand the significance of that decision, we need to recall that, unlike Canada which has a single Criminal Code applicable to the entire country, the Constitution of the United States reserves most of the criminal law to the individual states under the 10th Amendment. This is why, for example, the death penalty is still practised in some states and not in others. Prior to 22 January 1973, the legal status of abortion varied amongst the several states, with some being more permissive than others. After that date, the states were obligated to recognize a woman’s right to abortion according to a trimester framework. In the first trimester, a woman’s right to abortion was absolute. In the second, the state might regulate but not prohibit abortion. In the third, after the foetus was assumed to be viable, the state could prohibit abortion except in cases where the mother’s health is at risk.
Roe was decided based on a right to privacy the court claimed to find in the due process clause of the 14th Amendment, citing as precedent the Court’s decision in Griswold v Connecticut (1965). There was one problem, however. The due process clause reads:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws (section 1).
Nowhere in this sentence is abortion mentioned, nor is a right to privacy. It is highly unlikely that the framers of this amendment in 1868 envisioned that it would guarantee a right to abortion. Adopted three years after the abolition of slavery, it was intended to ensure that all citizens, including those recently released from bondage, should enjoy equal protection of the laws. To use the due process clause as the Court did in Roe made the decision controversial from the outset.
Writing a few years later, Archibald Cox treated the case in his short book, The Role of the Supreme Court in American Government (Oxford University Press, 1976), which I read during my first year of graduate school. In it he commented on the significance of Roe for the role of the Court in the larger political system:
First, the decisions plainly continue the activist, reforming trend of the [Earl] Warren Court. They are ‘reforming’ in the sense that they sweep away established law supported by the moral themes dominant in American life for more than a century in favour of what the Court takes to be the wiser view of a question under active public debate.
Second, the Justices read into the generalities of the Due Process Clause of the Fourteenth Amendment a new ‘fundamental right’ not remotely suggested by the words. Because they found the right to be ‘fundamental’, the Justices felt no duty to defer to the value judgments of the people’s elected representatives, current as well as past. They applied the strict standard of review applicable to repression of political liberties.
Third, three Justices in the seven-man majority were appointed by President Nixon as ‘strict constructionists’: Chief Justice Burger, Justice Blackman who wrote the opinion of the Court, and Justice Powell. Only one Nixon appointee dissented. . . . A court more concerned with the preservation of old substantive values than with articulation of a new spirit will find fewer occasions for rendering activist decisions. Still, the abortion cases strongly suggest that the new Justices are not restrained by a modest conception of the judicial function but will be activists when a statute offends their policy preferences (53-54).
Many legal scholars who had no policy preferences with respect to abortion believed that the Court had wrongly decided Roe, bending the Constitution to achieve a desired outcome, thus bypassing the representative institutions properly at the centre of the policy process. This put the legitimacy of Roe in doubt for two generations amongst a substantial segment of the American public.
Yet there was another issue which the Court simply ignored in its ruling but which Cox raised in his own treatment:
Oddly, but possibly because counsel did not stress the point, the opinion fails even to consider what I would suppose to be the most compelling interest of the State in prohibiting abortion: the interest in maintaining that respect for the paramount sanctity of human life which has always been at the centre of western civilization, not merely by guarding ‘life’ itself, however, defined, but by safeguarding the penumbra, whether at the beginning, through some overwhelming disability of mind or body, or at death [emphasis mine] (53).
By the late 1970s a pro-life movement was gaining momentum, with proponents arguing that the foetus in the womb has a right to life that ought to be protected by the law. Early pro-life activists were largely Roman Catholic, but they were joined by evangelical protestants later in the 1970s, persuaded to come onside by, among other factors, Francis Schaeffer and C. Everett Koop’s film series and accompanying volume, Whatever Happened to the Human Race? The long-range goal of the movement was to overturn Roe v Wade, and the means to this end was to influence the choice of justices by the president. Of course, presidential nominations can backfire for a sitting president, as appointees often decide particular cases in unanticipated ways. A president may think he is nominating a justice who will narrowly interpret the Constitution but who then proceeds to take the Court in a more activist direction.
As a long-range goal, overturning Roe was not without problems, two of which I will mention here.
First, once Roe had been decided, it became a precedent binding on future courts. A central legal principle in those jurisdictions influenced by the English common law is stare decisis, or stand on what is decided. This has made the courts in English-speaking countries reluctant to overturn their own previous decisions or to depart from them in a fundamental way. A rare example of such an exception is the Supreme Court’s famous 1954 decision in Brown v the Board of Education of Topeka, Kansas, which overturned the Court’s previous 1896 ruling in Plessy v Ferguson, which had upheld racial segregation of schools. If a court reverses itself too easily, it erodes its own standing in the larger polity as citizens come to regard it as less than fully impartial and too subject to the shifting whims of the justices themselves. This risks bringing the rule of law itself into doubt.
Second, a law that does not enjoy a popular consensus in its favour may not fully satisfy the characteristics of a law. Many jurisdictions have laws on the books that are effectively dead letters, with officials unwilling or unable to enforce them and the general public content to flout them. In this respect, a reversal of Roe in the absence of a supportive popular consensus will not necessarily keep women from obtaining abortions. The protection of the rights of the unborn depends not just on what is in the law books but on the law living in people’s hearts. If a substantial portion of the public is not persuaded that the life of the child in the womb is worth defending, then today’s victory may turn out to be an empty one at best. Pro-lifers should not assume that Roe‘s reversal means they can lay aside their efforts at building a pro-life consensus.
Nor does the Dobbs decision mean that the decades-long battle over abortion is over. There are many organizations heavily invested in protecting and advancing the abortion licence, including Planned Parenthood and NARAL Pro-Choice America. It would be foolish to expect them to put their cards away and go home now that they’ve apparently lost the game. While pro-lifers, flush with victory in the courts, may be loath to admit it, the abortion issue will not be settled if they do not recognize the legitimate concerns of their opponents and the fears that are driving them. Likewise, pro-choicers will need to be persuaded that the life of the child is a significant factor to be accounted for in the ongoing conversation.
For both sides, ascribing malice and ill will to their adversaries will only deepen the divisions in the larger society. Now is the time to seek healing and to bring the two sides together to discuss where to go from here. The process will not be an easy one, and I fear that both sides will be tempted to resort to ad hominem attacks and charges of bad faith. But it is worth the attempt.
Rights talk and partisan politics
If the US Supreme Court had not made its Roe v Wade decision, abortion would have remained a matter for the individual states to decide. Whether a national pro-life movement would have arisen is difficult to say, but pro-lifers would have had to wage their political battles in each of the fifty state legislatures. In any event, a pro-life movement did indeed gain momentum, and the court’s 1973 decision effectively exacerbated the deepening divisions in society over the issue. Because of the nature of the political process and because legislatures are able to put together carefully balanced compromises that at least minimally take into account the concerns of all sides, there is a good chance that everyone will come to own that decision for themselves, even if they are not completely satisfied with it.
However, court decisions are more likely to create winners and losers, whether in criminal, civil, or constitutional cases. In particular, the language of rights, if too quickly imported into the political process, is more likely to end a conversation than to facilitate it. This is the central thesis of Mary Ann Glendon’s 1991 book, Rights Talk: The Impoverishment of Political Discourse. If a person claims a right to such and such, he is generally not inviting potential disputants to sit down with him and weigh such a claim in the balance. No, he is likely to attach absolutist pretensions to such a claim, dismissing potential opposition as unworthy of consideration because it would violate his indefeasible rights. When a court is brought into the conversation, it can only rule for or against the claim, thereby creating winners and losers. That a claimed new right may conflict with an historic right already protected in a constitutional document, such as freedom of speech and religious freedom, may not be sufficiently considered, thereby producing more conflict rather than ameliorating it. Only the winners can realistically be expected to own a court decision.
Such was Roe v Wade and several similar decisions handed down by the Court during the 1960s and 70s. By cutting short the deliberative processes in the several states in 1973, the court effectively shut them down, forcing those unhappy with its neglect of the personhood of the unborn child to mount a campaign at the national level. Rather than seeking fifty modi vivendi that might admit of a measure of compromise, pro-lifers and pro-choicers began making absolute claims that could not be simultaneously accommodated: The right to life is absolute and cannot be mitigated for any reason. A woman’s right to bodily autonomy is absolute and cannot admit of any limitation whatsoever.
This form of reasoning brought people into the streets with placards rather than to the negotiating table with a willingness to hear each other out. Each side claimed the legacy of the long struggle for civil rights for African Americans, claiming for themselves the mantle of righteousness. Had the Court not made this decision over such a contentious issue, the status of abortion in the United States would have remained a patchwork. Patchwork legal regimes may seem untidy to some, but they better reflect the differing mores of the people in each state in a large country with a federal division of powers. Legal uniformity is not always a good thing, especially if it is imposed artificially by an unelected tribunal.
In this case, the Supreme Court’s action led to a half-century-long effort to steer the court itself in a different direction. The chosen means to do this was by electing a president who would nominate to the Court justices who would refrain from legislating from the bench. During this time, abortion became a partisan issue, which it had not been in the first decades after Roe. At one time there were pro-life Republicans and Democrats, as well as pro-choice Republicans and Democrats. Yet by the turn of the millennium, this was no longer the case. The Republicans had adopted a pro-life stance, while the Democrats became monolithically pro-choice, effectively compelling pro-life members to change their convictions or leave the party. And although there is a group called Democrats for Life (“Pro-Life for the Whole of Life”), they are definitely at the margins of the party, which has thoroughly taken on the ethos of expressive individualism in a most dogmatic way. Republicans similarly abandoned their pro-choice members and hardened their position on the issue.
This partisan polarization is not a good thing, in my view. As long as pro-lifers and pro-choicers were found in each party, the party machinery had to maintain enough room for members and supporters who differed on the issue. This prevented the parties from flirting with the margins of public opinion, enabling them to continue their historic status as brokers of different interests within the fold. Under that arrangement, each party had to moderate the extremes among its members. With internal diversity often greater than the differences between the two major parties, each party had to appeal to the broad spectrum of public opinion in and between elections. This system has now largely broken down, as the extremes have moved into leadership within the parties. Yet, paradoxically, Democrats and Republicans are united in their adherence to a form of liberal individualism that nevertheless manifests itself in different, largely dysfunctional, ways in each.
Among the issues that now divided Republicans and Democrats was the role of the courts in public life. Republicans recognized the dangers of unelected judges ruling, with a thin constitutional basis, on issues still being debated in the legislative bodies. Democrats were more likely to favour activist judges ruling according to a notion of a “living constitution” evolving to meet the needs of each successive generation. The competing philosophies of judicial restraint and judicial activism came to be identified, somewhat misleadingly, as conservative and liberal respectively.
However, for most of the past half century, conservatives were caught in a dilemma: however bad the Roe v Wade decision might have been, by then it had effectively become the law of the land and thus a precedent to be followed in subsequent court decisions, such as Planned Parenthood v Casey (1992). Within common law jurisdictions, conservatives generally defer to the principle of stare decisis, or standing on what has been decided. This made conservative justices on the Supreme Court, nominated by at least nominally pro-life Republican presidents, reluctant to tamper with Roe, much less to reverse it entirely. Some observers, among whom I would count myself, thus thought it more likely that, rather than reversing Roe outright, the Court would gradually allow its applicability to the state legislatures to be eroded. In the event, this is not what happened, much to my own surprise.
Planned Parenthood v Casey
In 1992 abortion again came before the Supreme Court in Planned Parenthood of Southeastern Pennsylvania v Casey. The Encyclopaedia Britannica’s entry describes the circumstances leading up to the case:
In 1988 and 1989 the Commonwealth of Pennsylvania, led by Governor Robert Casey, enacted new abortion statutes that required that a woman seeking an abortion give her informed consent, that a minor seeking an abortion obtain parental consent (the provision included a judicial waiver option), that a married woman notify her husband of her intended abortion, and, finally, that clinics provide certain information to a woman seeking an abortion and wait 24 hours before performing the abortion. Before any of these laws could take effect, Planned Parenthood of Southeastern Pennsylvania brought suit against the governor, protesting the constitutionality of the statutes.
As a devout Roman Catholic, Bob Casey (1932-2000) was one of the leading Democratic officeholders maintaining the pro-life position, becoming increasingly isolated as his party moved monolithically to embrace a pro-choice position. This paralleled the shift within the party from what I’ve labelled the equal-opportunity state to the choice-enhancement state, the latest stage in the centuries-long development of liberalism. (See chapter 2 of Political Visions and Illusions for a more in-depth treatment.) The divided Court’s decision in that case reaffirmed Roe v Wade and its basis in the supposed privacy guarantee implied in the 14th Amendment, but it abandoned the trimester framework of Roe, asserting instead that the law must not place an undue burden on a woman seeking an abortion.
One of the more quoted passages from Justice Anthony Kennedy’s plurality opinion contained this controversial understanding of liberty:
At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.
This has sometimes been called the “sweet mystery of life” or “sweet mystery” passage, undoubtedly a tongue-in-cheek allusion to this old song from a 1910 operetta. Here is the larger context from which this passage is taken, with the citations removed:
Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education . . . . Our cases recognize “the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” . . . Our precedents “have respected the private realm of family life which the state cannot enter.” . . . These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.
Some observers have argued that Kennedy’s definition of liberty introduces nothing new and simply affirms a hallowed legacy of liberty implicit (and explicit) in America’s founding documents. The Declaration of Independence famously holds “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” By some accounts, Kennedy was simply reiterating an age-old American conviction rooted in the nation’s history. From Puritans and Catholics fleeing a protestant king to Quakers and other nonconformists wishing to practise their respective faiths without undue interference, immigrants to these shores were seeking freedom from the perceived oppressive constraints imposed by their Old World rulers. Freedom of speech, of religion, of the press, of assembly—all are protected by the Constitution, especially in the first ten amendments known as the Bill of Rights. Nothing terribly innovative or controversial here.
Other observers were less sanguine about Kennedy’s reasoning, arguing instead that his definition of liberty is rooted in an extreme individualism that isolates the person from his or her obligations to the larger community. To “define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” seems to take us well beyond what an ordinary human being subject to the limits of the natural world and the standards of human societies can possibly claim to do. Kennedy’s words appeared to make us gods with superhuman powers to create and even to impose meaning on the inert material of the cosmos. Taking them seriously would furthermore facilitate conflict as ostensibly autonomous individuals attempted simply to follow their own proclivities irrespective of those mores which, in some fashion, underpin every human community. Unleashing this expressive individualism, as Charles Taylor and others label it, would force the state apparatus to fill the vacuum created by the suppression of informal standards once regulating interpersonal and intercommunal relations. No court could possibly guarantee such liberty without causing serious harm to the nation.
Following the principle of stare decisis, Casey largely upheld Roe while further extending a woman’s right to choose by liberating her from laws placing an undue burden on her decision to end her pregnancy. But because it offered no guidance on how to distinguish a due burden from an undue burden, it left considerable uncertainty in its wake, in addition to providing the pro-life cause with one more reason to try to change the composition of the Court. I will conclude with one final citation from the Casey ruling:
The Court’s duty in the present case is clear. In 1973, it confronted the already-divisive issue of governmental power to limit personal choice to undergo abortion, for which it provided a new resolution based on the due process guaranteed by the Fourteenth Amendment. Whether or not a new social consensus is developing on that issue, its divisiveness is no less today than in 1973, and pressure to overrule the decision, like pressure to retain it, has grown only more intense. A decision to overrule Roe’s essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court’s legitimacy, and to the Nation’s commitment to the rule of law. It is therefore imperative to adhere to the essence of Roe‘s original decision, and we do so today (91, emphasis mine).
That last-but-one sentence appears to constitute a remarkable admission that it is better to cling to an erroneous—and perhaps even unjust—ruling than to correct it and risk damaging the reputation of the Court. Nevertheless, the Court’s expressed concern over its standing is a legitimate one to which I will return later.
Dobbs v Jackson: the Court’s reasoning
Now we come to the ruling itself. The case began after the state of Mississippi enacted a law in 2018 banning most abortions after the first fifteen weeks of pregnancy. The state’s only abortion provider, Jackson Women’s Health Organization, sued State Health Officer Thomas Dobbs on the grounds that the law violated the constitutionally-protected right to abortion guaranteed in Roe v Wade. Mississippi in turn asked that the law be upheld and Roe struck down. As the case was being argued in the lower courts, these courts had granted injunctions to suspend enforcement of the law. Near the end of 2021, the case was heard by the Supreme Court, the highest court of appeal in the United States, with the decision expected this year. At the beginning of May a draft copy of the Court’s ruling was leaked to Politico, in an unprecedented breach of confidentiality. The Court released its decision in Dobbs v Jackson Women’s Health Organization on 24 June 2022, and, as expected, it struck down Roe v Wade. Here are the key paragraphs of the decision:
We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty” . . . .
The right to abortion does not fall within this category. Until the latter part of the 20th century, such a right was entirely unknown in American law. Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy. The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of “liberty.” Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called “fetal life” and what the law now before us describes as an “unborn human being.”
Stare decisis, the doctrine on which Casey‘s controlling opinion was based, does not compel unending adherence to Roe’s abuse of judicial authority. Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.
It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. “The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.” . . . That is what the Constitution and the rule of law demand.
It is worth noting that Dobbs, in speaking of “Roe‘s abuse of judicial authority,” agrees with Justice Byron White’s dissenting opinion in that earlier case five decades ago: “As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.” Dissenting opinions do not, of course, have the force of law or precedent because their reasoning has not persuaded the majority of the Court. However, if a ruling is eventually reversed, dissenting opinions attain greater significance as sources for the new majority or concurring opinions.
That the courts exercise judicial review is nowhere mentioned in the text of the constitution. In terminology more often used in Westminster democracies, it might be labelled an unwritten convention of the constitution developing out of and around the written document. The Supreme Court first exercised judicial review in the famous Marbury v Madison case of 1803, in which the Court invalidated the section of the Judiciary Act of 1789 which had granted it original jurisdiction in issuing writs of mandamus. Judicial review might be said to follow logically from the fact that the Constitution of the United States is a legal document binding on public office-holders. Documents do not interpret or enforce themselves. Some institution is needed to ensure that officials live up to their provisions, in recognition of the primacy of the rule of law.
However, in a democracy, in which self-government or representative government is paramount, there is good reason for the courts to be restrained in exercising judicial review. Certainly the courts are obligated to protect the rights and liberties of citizens against statutory violations of said rights and liberties. As a constitutional democracy, the United States recognizes certain core freedoms necessary to its functioning as such. These are listed in the first ten amendments to the Constitution, adopted in 1791 and known collectively as the Bill of Rights. After more than two centuries, there is a consensus in the larger political culture in favour of these freedoms, which properly lie beyond the competence of the legislative bodies representing the citizens. Freedom of religion, of speech, of the press, and so forth are properly inviolable.
However, when a particular group asserts a right not contained in a written constitution or previously unacknowledged in the unwritten constitution, such a claim must be adjudicated by a generally recognized authority. At the outset such a claim to a right is only that: a claim. Those making such a claim must make their case in the proper forum along with those who might have legitimate reasons to contest the claim. Justice requires, not simply acknowledging the claim, but hearing all sides, weighing the issue according to recognized principles of justice anchored in the law, and deciding whether the claimed right, either in whole or in part, should be recognized as positive law. In the vast majority of such cases, a representative body is the most appropriate authority to weigh such a claim, either by enacting a new statute or initiating an amendment to the Constitution. If a given polity is divided on the claim, neither side is likely to obtain the entirety of what it is seeking. But such outcomes are in the very nature of democracy, in which compromise enables some measure of conciliation in the midst of disagreement.
When a polity is sharply divided on an issue, two institutions internal to government may succumb to a temptation which, far from settling it, ends up exacerbating the division.
The first of these is the court system. In the absence of a consensus favouring a newly claimed right, the courts may assume that they can cut through this absence and, in effect, change the constitution without having to grapple with the messiness that is democratic deliberation or needing to obtain the qualified majorities required to change a constitutional document. Rather than patiently building a consensus where none exists, judges unduly assume that they can create one by fiat. As we have seen, the justices in Roe and Casey proclaimed and upheld a right for which there was and remains no consensus.
The second of these consists of the legislatures themselves. Under a constitution permitting judicial review, elected representatives are tempted to defer to the courts as a way of avoiding taking responsibility for deciding a controversial issue. If the courts decide one way or the other, and if a segment of the electorate is unhappy with the decision, an officeholder can simply shrug his shoulders and protest that it was taken out of his hands. This arguably makes a mockery of the democratic process. Yet some observers are claiming that the Supreme Court’s decision in Dobbs v Jackson is a step backwards for democracy, while others argue that Dobbs represents a vindication of democracy. The ruling itself makes the latter claim: “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
Unfortunately, Dobbs promises to be just as divisive as Roe and Casey were, and the abrupt change of heart in the Court may effectively erode confidence in its status as an impartial arbiter. This is an issue raised in Casey to which I will return in the next instalment.
Was it rightly decided?
As we noted earlier, the English common law treats established precedents as binding on current and future court decisions. The ancient doctrine of stare decisis, or stand on what is decided, is a fundamental principle that guides the courts in common law jurisdictions. The common law is often said to be “judge-made law,” as distinct from law made by a legislative body. But to say that judges make the law may not be altogether accurate. According to Cicero,
True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrong-doing by its prohibitions. And it does not lay its commands or prohibitions upon good men in vain, although neither have any effect upon the wicked. It is a sin to try and alter this law, nor is it allowable to attempt to repeal a part of it, and it is impossible to abolish it entirely. We cannot be freed from its obligations by senate or people, and we need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and for all times, and there will be one master and one rule, that is, God, over us all, for he is the author of this law, its promulgator, and its enforcing judge (De Republica, III. xxii).
If true law is right reason, then it cannot be a matter of creating laws but of finding them: of discovering what the precepts of the law really and truly are through patiently exercising the reasoning process. Or, as Arthur R. Hogue puts it, “Law was not ‘made,’ according to this medieval view; it was ‘declared’ by those familiar with the custom of a certain territory” (Hogue, Origins of the Common Law). Laws were thought to be universally valid albeit admitting of variability according to local conditions. A judge, according to Sir William Blackstone, is
sworn to determine, not according to his own private judgment, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one. Yet this rule admits of exception, where the former determination is most evidently contrary to reason; much more if it be clearly contrary to the divine law. But even in such cases the subsequent judges do not pretend to make a new law, but to vindicate the old one from misrepresentation (Commentaries on the Laws of England).
Of course, the common law developed centuries before democracy would grow out of the existing estates of the realm, namely, king, lords, and commons. The 16th and 17th centuries saw such political philosophers as Jean Bodin and Thomas Hobbes formulating theories of sovereignty, which presupposed that a sovereign will takes priority over reason in determining the content of the law. While the early modern political philosophers were scarcely democratic in their leanings, their notion of sovereignty was easily adaptable to theories of democratic rule. Now the democratic people were deemed sovereign, with their elected representatives, not just declaring an already existing law, but making new ones. Thus today we have continuously sitting parliamentary bodies constantly tinkering with the laws, amending or abolishing old laws, instituting new ones, and establishing new programmes for which enabling legislation is necessary.
Within this context, the courts should play a stabilizing role, adjudicating disputes that arise under the laws, as well as measuring the laws themselves against the higher standard embodied in a written constitutional document. However, the courts can inadvertently subvert the law. This may occur when the courts, accustomed to their outsized role in the common law tradition, become tempted to “declare” the law in a system predicated on legislative will belonging to representative bodies. Because of their representative character, such bodies can more faithfully mirror “the known laws and customs of the land.” Or they can declare new laws and, in so doing, plausibly claim to speak for a fresh popular consensus. An unelected court is not well positioned to do the same. This is why, when the Supreme Court ruled in Roe v Wade, it went beyond declaring “the known laws and customs of the land” and effectively made a new law in the absence of such a consensus. This sowed half a century of division over the ruling.
My analysis thus far suggests that, in deferring to representative bodies, the Court made a correct ruling in Dobbs v Jackson. Nevertheless, the decision is not without its negative implications. After 49 years, a substantial segment of the American public had become accustomed to the regime initiated by Roe and had come to rely on the right it claimed to guarantee. Let us examine once more this section from the Dobbs decision:
The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty” . . . . The right to abortion does not fall within this category.
Perhaps not, but one might conceivably argue that the right had by now become “deeply rooted” over the half century it was in effect. Might the court have been obligated to take this into account? As we noted before, even conservative justices on the Supreme Court felt obligated to defend Roe based on stare decisis.
So what does the future hold with respect to abortion in the United States? President Joseph Biden appears to be more sympathetic with an activist judiciary than his immediate predecessor. If, say, the current Vice President is elected to the presidency in two or six years, she may be presented with the opportunity to nominate one or more justices to the high court. Will a future activist court reverse Dobbs and reinstate Roe? Will successive Courts pull the nation back and forth for decades to come? What will happen to the Court’s stature if it comes to be seen as an arbitrary tribunal susceptible to capture by partisan politics? Will the Court become a destabilizing element in an already dangerously polarized polity? More immediately, will the fact that three justices were nominated by a president discredited by the revelations of the January 6 congressional hearings cast doubt on Dobbs‘s legitimacy?
These important questions need to be considered as Americans move into the future. Pro-choicers are now convinced that a cherished right has been unjustly taken away from American women. Pro-lifers may be tempted to declare victory and go home, but the difficult task of nurturing a pro-life political culture has not been made unnecessary by a favourable court ruling. Some pro-lifers will want to go beyond this and push for a human life amendment to the US Constitution, an effort highly unlikely to meet with success given the hurdles posed by the formal amendment process in Article V of the Constitution. Some pro-choicers may seek a similar amendment to enshrine the apparent gains of Roe v Wade in the Constitution, but, once again, given the qualified majorities required by Article V, this will almost certainly be impossible to achieve.
What we are left with, then, is a situation similar to that of 21 January 1973, when the status of abortion varied from state to state, but with this important difference: today the rhetoric surrounding abortion is considerably more heated and the nation more divided than it was half a century ago. The blame for this division must rest largely with the Courts that decided Roe and Casey in so far as they succumbed to a certain impatience with the untidiness of political deliberation in the several states and unduly cut short the processes that might have led to a more stable series of compromises. The negative effects of this remain with Americans to the present day. Unfortunately, Dobbs will not undo this and seems likely only to exacerbate existing tensions.
Abortion in Canada
As in many things, Canada and the United States differ with respect to abortion policy. As noted earlier, unlike the US, Canada has a unified Criminal Code for the entire country. For the first century after Confederation, abortion was banned as a criminal offence. Under Pierre Trudeau’s Criminal Law Amendment Act, 1968-69, also known as the “Omnibus Bill,” abortion was allowed under certain circumstances, provided it was performed in hospital under the supervision of a therapeutic abortion committee. If the life or health of the mother was at stake, the three-physician committee was authorized to approve it. In 1970, this provision was numbered section 251 of the Criminal Code, the first two subsections of which read as follows:
251. (1) Every one who, with intent to procure the miscarriage of a female person, whether or not she is pregnant, uses any means for the purpose of carrying out his intention is guilty of an indictable offence and is liable to imprisonment for life.
(2) Every female person who, being pregnant, with intent to procure her own miscarriage, uses any means or permits any means to be used for the purpose of carrying out her intention is guilty of an indictable offence and is liable to imprisonment for two years.
All of this took place during what might be called Canada’s ancien régime, that is, during the years before the country’s constitution was patriated in 1982. Prior to that time, Canada’s principal constitutional document was the British North America Act of 1867, which was not a constitution at all but simply a statute of the Parliament of the United Kingdom, to which Canada’s Parliament was technically still subordinate. This changed in 1982, when Pierre Trudeau’s government succeeded in adapting the former BNA Act into the Constitution Act, 1867 while adding a Constitution Act, 1982, consisting primarily of a new Charter of Rights and Freedoms, along with procedures for amendment.
Unlike the former BNA Act, the validity of the Constitution Acts was home-grown, rooted in Canada’s status as an independent nation state. Among other things, patriation changed the status of previously enacted laws. While the British doctrine of parliamentary sovereignty was never fully applicable to Canada’s parliament due to the federal division of powers, it had now been largely replaced by a constitutional supremacy similar to that found in Article VI of the US Constitution. As in the US and other countries, this empowered the courts to act as referees under the constitution, authorized to weigh the validity of statutes according to constitutional criteria. This new regime altered the status of Canada’s Supreme Court, which had been established in 1875 under section 101 of the former BNA Act. Rather than being kept busy by a plethora of civil cases with an automatic right of appeal, the Court was now elevated to the position of supreme arbiter of the country’s constitution acts.
On 28 January 1988, the Supreme Court of Canada handed down a ruling in R v Morgentaler (also known as Morgentaler v the Queen) invalidating section 251 of the Criminal Code. Dr. Henry Morgentaler was a physician and abortion rights activist who performed abortions at his clinics in Toronto and Winnipeg. In so doing he ran afoul of the law on more than one occasion during the 1970s and 80s. One of these cases finally reached the Supreme Court, which ruled in his favour, thereby altering the legal status of abortion in Canada. The case was decided based on the new Charter of Rights and Freedoms, especially section 7, which guarantees everyone “the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
Yet, unlike Roe, Morgentaler was a narrow decision, with the concurring justices writing different opinions, none of which secured a majority of the seven justices hearing the case. As a consequence, the Court found no indefeasible right to an abortion by a pregnant woman. In fact, one of the justices explicitly identified what he saw as a flaw in Roe:
In Roe [Roe v. Wade 410 U.S. 113 (1973)], the Court held that although the State had an important and legitimate interest in protecting potential life, that interest could not become compelling until the point at which the fetus was viable. The difficulty with this analysis is clear: potential life is no less potential in the first weeks of pregnancy than it is at viability or afterward. At any stage in pregnancy, there is the potential for human life. Although the Court refused to “resolve the difficult question of when life begins,” id., at 159, the Court chose the point of viability — when the foetus is capable of life independent of its mother — to permit the complete proscription of abortion. The choice of viability as the point at which state interest in potential life becomes compelling is no less arbitrary than choosing any point before viability or any point afterward. Accordingly, I believe that the State’s interest in protecting potential human life exists throughout the pregnancy.
While striking down section 251, the Supreme Court of Canada left intact the authority of Parliament to enact another statute regulating abortion that would rectify the defects of the invalidated statute. Accordingly, the Conservative government of Prime Minister Brian Mulroney twice tabled legislation to address abortion, the second of which, C-43, died in the Senate on third reading in 1991, a rare occurrence in Canada’s appointive upper chamber. By convention, normal party discipline is relaxed when divisive moral issues are brought before Parliament, or at least this was the case at the time. With Senators voting according to their respective consciences, they were at that moment not expected to defer to the Commons and the government of the day. Hence defeat in the Senate could not, and in any case would not, bring down Mulroney’s government.
However, it did leave a legal vacuum with respect to abortion, with successive governments afraid to address the issue at all. Unlike other western countries, the status of the foetus remains legally unprotected from conception to birth, although in practice only one third of hospitals in Canada actually perform abortions, with the remainder done at specialized clinics. No province provides abortion beyond the gestational limit of 23 weeks and six days (Ontario, Québec, and British Columbia). The territory of Nunavut does not perform abortions beyond 12 weeks, with the other provinces and territories ranged between these two stages. This means that, while abortion is in principle legal in Canada, availability remains something of a patchwork depending on which province or territory one lives in.
I will conclude by citing two paragraphs from R. v Morgentaler that bear on the status of judicial review in Canada:
The power of judicial review of legislation, although given greater scope under the Charter, is not unlimited. The courts must confine themselves to such democratic values as are clearly expressed in the Charter and refrain from imposing or creating rights with no identifiable base in the Charter. The Court is not entitled to define a right in a manner unrelated to the interest that the right in question was meant to protect . . . .
Before the adoption of the Charter, there was little question of the limits of judicial review of the criminal law. For all practical purposes it was limited to a determination of whether the impugned enactment dealt with a subject which could fall within the criminal law power in s. 91(27) of the Constitution Act, 1867. There was no doubt of the power of Parliament to say what was and what was not criminal and to prohibit criminal conduct with penal sanctions, although from 1960 onwards legislation was subject to review under the Canadian Bill of Rights . . . . The adoption of the Charter brought a significant change. The power of judicial review of legislation acquired greater scope but, in my view, that scope is not unlimited and should be carefully confined to that which is ordained by the Charter. I am well aware that there will be disagreement about what was ordained by the Charter and, of course, a measure of interpretation of the Charter will be required in order to give substance and reality to its provisions. But the courts must not, in the guise of interpretation, postulate rights and freedoms which do not have a firm and a reasonably identifiable base in the Charter.
Here the conflict between judicial activism and judicial restraint has been less evident than in the United States. In Canada, moreover, Parliament plays no role in confirming judicial appointments or even in vetting prospective judges. Instead, the Prime Minister, with the input of the Justice Department, advises the Queen’s representative, the Governor General, whom to appoint to the section 96 and 101 courts. Canadians seem less invested in the composition of their courts than Americans are, because they are viewed as less political.
But if the courts were to take on a more activist role, some of the controversy Americans have known for generations could spill over into Canada. Although there is already some evidence of this activism in Canadian courts, thus far it has not elicited the same level of controversy as in the United States, and the courts have generally exercised restraint, as seen, for example, in comparing Reference re Same-Sex Marriage (2004) with its American counterpart, Obergefell v Hodges (2015). Accordingly, while the social and cultural divisions in the United States are to some extent present in Canada, the courts here, in my view, have been more careful not to aggravate them.
