There follows a guest post by James Allan, Garrick Professor of Law at the University of Queensland, Australia, who says that while he supports abortion rights, Roe v Wade was a poor legal decision and the U.S. Supreme Court would be right to take the matter away from unelected judges and return it to the democratic process.
To read the newspapers in the U.K. and Australia, even the conservative newspapers, one would think the U.S. Supreme Court’s leaked opinion was ending abortion in America completely. (And as a digression, in the U.S. they say that judges write ‘opinions’ whereas in Britain and the Westminster world we call them ‘judgments’. In my view the Americans have the terminology right.) I suppose that this is in part a deliberate ploy by many in the press. Here’s the reality.
In 1973, the U.S. Supreme Court in Roe v Wade removed the issue of abortion from the democratic process. At the time, and many will find this hard to believe in today’s hyper-partisan world, some three-quarters of constitutional law professors thought this was a very weak and implausible decision. I would say it’s one of the worst bits of legal reasoning you’ll ever read. Let’s be blunt. The judges made it up. One of the dissenters in the Roe case, Justice White, described the majority’s decision as “the exercise of raw judicial power”.
Since then Britain, Australia, New Zealand and the majority of democratic Europe have sorted out abortion through the elected legislature. Everyone counts the same and you vote for elected MPs who negotiate and reach a compromise; generally that compromise has been along the lines that abortions are legal till the last trimester or some such outcome. And because that outcome was decided through a legitimate political process, and because nothing is ever completely off the democratic table, almost all the heat in the abortion debate was dissipated.