Peter Singer, my favorite ethical philosopher and somewhat of a role model, has published a provocative article at Project Syndicate that has made me rethink the Dobbs decision that overturned Roe v. Wade. While I absolutely supported Roe v. Wade, and in fact would extend the two-trimester guidelines for legal abortion, I didn’t really see the “right to abortion” enshrined in the Constitution. Sure, you could slot it into the “right to privacy”, but that’s stretching it. And that dies differ from the supposed “right to own guns”, as the Second Amendment specifies under what condition people can own guns: for a militia, not to carry them into a bar in Colorado.
The Supreme Court’s current brief is to rule on whether a law is constitutional, not to make new law. And if you take that view, then the Dobbs decision was correct, as it in effect affirmed that states could ban abortion, for the right to make such laws was not a subject of the Constitution. Ergo, Roe v Wade, which affirmed such a right, wasn’t decided properly.
Of course the Court’s ruling was also tempered by the strong Catholic beliefs of most justices, so it was largely a religious decision as well. But given that I am strongly pro-choice, what do I do? After thinking about it, I’m pondering the solution offered by Singer in this piece: let the democratic process, whether it be on the federal or state level, decide issues that aren’t addressed by the Constitution.
Every woman should have the legal right safely to terminate a pregnancy that she does not wish to continue, at least until the very late stage of pregnancy when the fetus may be sufficiently developed to feel pain. That has been my firm view since I began thinking about the topic as an undergraduate in the 1960s. None of the extensive reading, writing, and debating I have subsequently done on the topic has given me sufficient reason to change my mind.
Yet I find it hard to disagree with the central line of reasoning of the majority of the US Supreme Court in Dobbs v. Jackson Women’s Health Organization, the decision overturning Roe v. Wade, the landmark 1973 case that established a constitutional right to abortion. This reasoning begins with the indisputable fact that the US Constitution makes no reference to abortion, and the possibly disputable, but still very reasonable, claim that the right to abortion is also not implicit in any constitutional provision, including the due process clause of the Fourteenth Amendment.
The reasoning behind the decision in Roe to remove from state legislatures the power to prohibit abortion was clearly on shaky ground. Justice Byron White was right: The Roe majority’s ruling, he wrote in his dissenting opinion in the case, was the “exercise of raw judicial power.”
The Supreme Court exercised that power in a way that gave US women a legal right that they should have. Roe spared millions of women the distress of carrying to term and giving birth to a child whom they did not want to carry to term or give birth to. It dramatically reduced the number of deaths and injuries occurring at that time, when there were no drugs that reliably and safely induced abortion. Desperate women who were unable to get a safe, legal abortion from properly trained medical professionals would try to do it themselves, or go to back-alley abortionists, all too often with serious, and sometimes fatal, consequences.
None of that, however, resolves the larger question: do we want courts or legislatures to make such decisions? Here I agree with Justice Samuel Alito, who, writing for the majority in Dobbs, approvingly quotes Justice Antonin Scalia’s view that: “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.”
Now Singer points out the irony of the Court overturning Roe right after it affirmed, on Constitutional grounds, the right of citizens of New York to carry handguns, a right that isn’t really in the Constitution unless you stretch the Second Amendment like a Slinky.
I know what you’re thinking: “But if the states vote, I won’t get the laws I want: we’ll have a lot of states that ban abortion.” And that may be true, but if such things aren’t specified in the Constitution, then it’s either up to Congress or the states to decide the issue, not the Supreme Court. The Congress might just squeak through a national pro-choice law some day (not in the near future, sadly), but until then we should not let the Supreme Court strike down democratically enacted legislation. This is something Singer points out in his piece (my bolding):
There is an even more radical implication of the view that courts should not assume powers that are not specified in the Constitution: the Supreme Court’s power to strike down legislation is not in the Constitution. Not until 1803, fifteen years after the ratification of the Constitution, did Chief Justice John Marshall, in Marbury v. Madison, unilaterally assert that the Court can determine the constitutionality of legislation and of actions taken by the executive branch. If the exercise of raw judicial power is a sin, then Marshall’s arrogation to the court of the authority to strike down legislation is the Supreme Court’s original sin. Marbury utterly transformed the Bill of Rights. An aspirational statement of principles became a legal document, a role for which the vagueness of its language makes it plainly unsuited.
So whence does the Supreme Court derive its ability to overturn legislation not in the Constitution? It’s not in the Constitution itself, but is an assertion of one Justice in 1803. I’m taking Singer’s word for this, but I assume some readers will know this history.
Apparently, though Singer is not clear on this, laws that are clearly against what is specified in the Constitution can properly be struck down, for otherwise we’re left with conflicting legal assertions.
And now you’re probably asking yourself, as I did, “Well, if the court doesn’t rule on whether hazy laws are Constitutional, then what should it be doing?” That’s a good question, and Singer’s answer isn’t totally satisfying. For if the Supreme Court (or apparently any court) can’t rule on whether every law adheres to the federal Constitution, can state courts rule on whether hazy state laws are constitutional? I suppose that depends on whether state judges are elected or appointed. If the former, then their rulings are part of the democratic process; if they’re not, then they have no business making such rulings (see below).
Singer’s Big Solution:
Supreme Court decisions cannot easily be reversed, even if it becomes clear that their consequences are overwhelmingly negative. Striking down the decisions of legislatures on controversial issues like abortion and gun control politicizes the courts, and leads presidents to focus on appointing judges who may not be the best legal minds, but who will support a particular stance on abortion, guns, or other hot-button issues.
The lesson to draw from the Court’s decisions on abortion, campaign finances, and gun control is this: Don’t allow unelected judges to do more than enforce the essential requirements of the democratic process. Around the world, democratic legislatures have enacted laws on abortion that are as liberal, or more so, than the US had before the reversal of Roe v. Wade. It should come as no surprise that these democracies also have far better laws on campaign financing and gun control than the US has now.
The part in bold, which is my emphasis, is not entirely clear, and that is Singer’s fault. What does he mean by “enforce the essential requirements of the democratic process.” Couldn’t he list some appropriate actions? Does he mean that they can adjudicate laws that may have not been passed democratically, or laws that lower courts mistakenly construed? I’m pretty sure he means at least that “the Supreme Court should not determine the Constitutionality of laws to which the Constitution does not apply.” For Supreme Court justices, being appointed and not elected, shouldn’t be doing what they’re doing. (I can just imagine what the Supreme Court would look like if its judges were elected!)
This of course will radically overhaul the entire court system in the U.S., and not just federal courts. I’m just throwing this out there to see what readers think. Most of us are pro-choice and are angry as hell that the Supreme Court decided that Roe v. Wade didn’t really rest on a constitutional “right to privacy.” But remember that courts are political, and the Supreme Court in particular can willy-nilly rule on rights when the court itself isn’t accountable to the voters.