Remember Merrick Garland? He was nominated for a seat on the American Supreme Court by former President Barrack Obama in 2016 after the death of one of the sitting judges, Antony Scalia. He was considered a liberal - although a pretty mild one - by most observers but this was too much for conservatives in the American Senate, who blocked his nomination for almost a year. He was eventually replaced by a conservative choice for the Court, Neal Gorsuch, by incoming President Donald Trump. Gorsuch was quickly confirmed by the Senate.
Do not feel too sorry for Garland, by the way. He is now Attorney General of the USA, having been appointed by Joe Biden. The fact that his nomination was shamelessly and ruthlessly blocked by the conservative Republicans in the Senate, however, shows how factions who are prepared to ignore the accepted norms of behaviour in support of a cause can often achieve results that leaves those who obey the rules fuming with frustration. The fact that they are impotent to alter the result only increases their sense of annoyance.
Sure enough, the Supreme Court has now overturned the right to an abortion that was never enshrined by statute but was accepted after a previous ruling, the famous Roe versus Wade, was reversed by the current Court. While it does not directly affect people in Britain, the ruling has gathered a lot of publicity here and highlights the contrast between the British and American justice systems. In a nutshell, in the USA the Supreme Court has the final say, while in Britain Parliament rules supreme and can override the Court if it wants to.
After he had been in power for a short time and wanted to bring Brexit on, Boris Johnson decided to suspend (prorogue) parliament but the court told him that it would be against the law to do so. Cue lots of muttering about arrogant remainer judges frustrating the will of the people. However, as Prime Minister, Johnson could have altered the law to give him the necessary power if he wanted to. The only problem was that he knew he would never get parliament to agree to this so it was the politician who was frustrated by the courts and the rule of law.
Quite right too. Democracy should always take priority over the courts but politicians have to obey the law and do not wield absolute power. In America some judges are called ‘originalists’, ie they say that what the Founding Fathers wrote in the original Constitution should be followed to the letter. Yet, these were human and fallible men living in the eighteenth century. Abortion simply did not exist then so it is technically right that there is no constitutional right to an abortion in it. That does not mean the right to one should be utterly abolished by the Court.
Yet this is what is happening in the USA right now. It shows how a well-organised and ruthless group of people, who are convinced they are in the right, can sometimes exploit the system to further their own agenda while more reasonable and moderate people are left powerless. The great majority of Americans think that abortion should be legal yet most of them will not have access to it now because conservative Republicans refused to even discuss the nomination of a man to the Supreme Court who might have allowed it.
My own position on abortion has always been that it is valid to regard it as a sin but that it is unwise to treat it as a crime. The word sin is not very fashionable because it has biblical overtones but it provides a useful way of distinguishing between what should remain in the area of personal morality and what should be treated as illegal by the state. In fact, it is slightly more nuanced than this because a foetus/unborn child (whatever you want to call it) has rights that kick in at a certain stage when aborting it would be criminal - as well as (possibly) sinful.
I also think that these rights are absolute and should not be denied to a foetus in the case of disability, when the time limit on abortion is waived. That currently stands at twenty four weeks, which is taken as the time when viability starts. There is discussion about changing this to twenty weeks as medical science advances. I am fairly agnostic about where the line should be drawn but I am certain it has to be drawn somewhere. At that point abortion is no longer a possible sin and becomes a crime, whatever the condition of the foetus.
Yet, those who oppose abortion are determined that it should always be treated as a crime rather than as a sin. Many of those who support abortion rights do so reluctantly and with the feeling that a termination is the least worst option in the case of an unwanted pregnancy. They know that it might be wrong but ending a pregnancy is probably a better option for a poor mother than bringing another unwanted child into the world. The absolutists who regard this as murder entertain no such doubts and are prepared to do anything to achieve their ends.
I wonder if they would be better off trying to persuade pregnant women that it might be a sin to kill an unborn child but that it should not be treated as a crime. This is what happened in the Republic of Ireland when they had the debate about allowing abortion. (Discussed here.) The people had a chance to vote on the matter and decided that an individual should be allowed to choose whether to end a pregnancy or not. They, not the state, would decide on the morality of the matter so abortion might be called a sin but would not be treated as crime.
This was a mature and considered decision and would almost certainly be repeated if a referendum were held in the USA. However, the American constitution does not allow for referendums and leaves these matters to be decided by the Supreme Court. The way the system is organised gives conservatives an inbuilt advantage which they have ruthlessly exploited to thwart majority opinion. The British system is better. It may not be perfect but it beats leaving it to the fanatics who use every method in their power to achieve their ends.
Edwin Lerner
My other blog is diaryofatouristguide.blogspot.com
