From top: A protest outside the US Supreme Court, Washington DC last night following the leak of a draft opinion by the court overturning Roe Vs Wade, which enshrined the right to an abortion in the American constitution since 1973; David Langwallner

”I fear for the future, ‘The signs are evident and very ominous, and a chill wind blow.”

US Supreme Court Justice Harry Blackmun, Planned Parenthood v Casey (1995)

I shall try to be balanced and, in the light of the Promethean extremism that is likely to occur, calm the waters, but not bathe perhaps in a spiritual conversion! I am not come to Jesus. I will go out not so.

Blackmun, who wrote Roe, was, evident in Bob Woodward’s book about The Supreme Court The Brethren, influenced and delegated to write the majority opinion by the arch liberals Douglas and Brennan, who would not have command the same authority or support. They clearly bullied him, particularly the tyrannical atheist Bill Douglas. Not all liberals are good people.

It caused an everyman, decent, but not stellar, lawyer a great deal of trauma but became his legacy. In the above quote, during the last seismic attempt to get Roe overturned, and aged over 90, he both approbated and reprobated. He assented to the Republican Sandra Day O’ Connor‘s upholding of the kernel of Roe, but dissented on the curtailment and restrictions she imposed.

In effect she was right. The three-trimester analysis in Blackmun’s opinion meant that abortion could be permitted until six months and the medical science indicated a child could survive outside the womb from about five months. Possibly earlier. The trimester analysis was not medically sound and thus regulations could be imposed restricting abortion for up to the six month period.

This led to a flurry of retractions and subsequent litigation concerning notifications, consent issues and also led to the accentuation of the abortion wars,, the murder of abortion doctors and the death penalty for one who committed the act. The incongruity obvious to all: a pro-lifer sentenced to death.

For many Republicans are all in favour of the death penalty, but zealously anti-abortion and, inconsistently, many Democrats are all in favour of abortion, often in an unregulated way, but zealously opposed to the death penalty.

The appointment by Trump is blamed for this of various judges culminating in Amy Coney Barrett, the perfect handmaiden of the right and not the turncoat that Sandra Day became, and it has worked. Roe is gone.

Now what this all means is that the liberal, academic, political and legal agenda has lost the argument and that the Bible Belt has won. Polite academic debate aside, it is game over and the interpretation of texts will now be literal and historical.

This is a crisis of federalism versus state rights. In fact, it is all the hallmarks of a state federal crisis unprecedented since the desegregation of the schools. also by the Supreme Court in 1954 or the Civil War. And Biden is neither Abraham Lincoln nor FDR, who threatened to stack the court if they did not pass his New Deal legislation. When they did it became known by the wags as ‘The switch in time which saved nine.

Though I have not yet had sight of Alito’s opinion I am sure from reading the reportage he has a point. As distinguished a scholar as Alexander Bickel argued Roe was overly expansionist investing excessive power in the judiciary. It was unprecedented and turned the judiciary into legislators or philosopher monarchs.

In Ireland A version of the privacy right was recognised in McGee v. Attorney General [1974] IR 284, when most of the Supreme Court identified a right to marital privacy.

The Court also held that that right was being unjustly infringed by acts, which prevented the plaintiff from importing contraceptives. The Court was impressed by the “universal” nature of the right to privacy – a right which was subject only to rare exceptions.

It is worth noting that, in the United States, a similar case eventually led to the legalisation of abortion. In Griswold v. Connecticut (1965) 381 US 479, the United States Supreme Court or rather Bill Douglas held that the right to privacy rendered invalid a law denying married people access to contraceptives. This paved the way for Roe.

Restrictions on privacy were in fact recognised in Ireland (Norris v. Attorney General [1984] IR 36.) Where The plaintiff argued that such a right existed, and that it was breached by the operation of several pre-1937 provisions whose sections criminalised homosexual acts between males, regardless of age or consent

O’Higgins CJ appeared to accept that a general right to privacy did indeed exist. However, the Chief Justice was also of the view that a right to privacy did not exclude the State from “the field of private morality”; rather, the State had a keen interest in the moral well-being of society and could “discourage conduct which is morally wrong and harmful to a way of life and to values which the State wishes to protect”.

The majority was also concerned by public health issues (specifically sexually transmitted diseases), and the fact that homosexuality could be regarded as an attack on the institution of marriage. The “right to be let alone” (a phrase coined in the United States) could not override the common good as protected by the legislative provisions. The judge opined.

Strong dissents were delivered by McCarthy and Henchy JJ. Neither judge could find good reason for the State to intervene in the plaintiff’s private life in the manner permitted under the provisions. In their view, the State had failed to discharge the onus of showing that the maintenance of public order and morality outweighed the plaintiff’s right to privacy – a right that was recognised by both judges. Per Henchy J, at p 71.:

There are many other aspects of the right…. [which] would all appear to fall within a secluded area of activity or non-activity, which may be claimed, as necessary for the expression of an individual personality, meriting recognition in cases, which do not endanger considerations such as State security, public order or morality, or other essential components of the common good.

A subsequent challenge to the legislation, also based on the right to privacy, succeeded in the European Court of Human Rights (Norris v. Ireland (1989) 13 EHRR 186).

It might also be noted that the United States Supreme Court, having initially rejected any right to privacy that could protect the right to engage in sodomy (later accepted that the right to privacy had been violated by a Texan law allowing for the prosecution and conviction of a man who had been having consensual sex with another man in the privacy of his home.

So, although a ‘living instrument’ approach to the constitution should deal with gay rights or contraception, abortion was a bridge too far. Not just in terms of judicial precedent but judicial arrogance and imperialism.

Death Penalty aside the American Supreme Court is now concisely pro-life, and the Overton window has shifted.

The view of the United States Supreme Court in Washington v. Glucksberg 521 US 702 (1997) is illustrative of this point. In that case, Glucksberg (a doctor) and others (including three terminally ill patients) challenged Washington State’s ban on assisted suicide.

The Supreme Court examined the many reasons for the ban, which included the protection of patients from medical malpractice and the ending of lives due to financial or psychological problems. The practice was traditionally frowned upon and was still banned in most States.

Furthermore, liberty interests which were not “deeply rooted in the nation’s history” did not qualify for protection under the Fourteenth Amendment. The Court concluded that “the asserted ‘right’ to assistance in committing suicide is not a fundamental liberty interest protected by the due process clause”.

The Court had been impressed by the rational connection between the ban on assisted suicide and the interests of the State. These included the State’s “unqualified interest in the preservation of human life”, which was reflected in all homicide laws. Furthermore, suicide was a public health issue which particularly affected vulnerable persons and groups.

The State had an interest in protecting vulnerable groups (including the poor, the elderly, the terminally ill and the disabled) from abuse, neglect, and mistakes; the legalisation of assisted suicide might lead such people to take that option to spare their families a financial burden.

The State could legitimately attempt to preserve such people from coercion and “societal indifference”. Furthermore, the State also had an interest in preserving medical ethics and the integrity of the medical profession. Finally, there was a legitimate fear that the permission of assisted suicide could eventually lead to voluntary, and even involuntary, euthanasia.

Yet Ireland has legislated for abortion and is attempting to do the same for euthanasia. Many American states will now ban same. Many restrictively regulate. Euthanasia is only available in few states.

The relevance for Ireland is that in an odd sort of way, the Americans are departing from the great liberal consensus and, death penalty aside, having a debate at one level about life termination issues. We should be attuned to this, and it does not of necessity make us progressive that we have chosen a different path.

David Langwallner is a barrister, specialising in public law, immigration, housing and criminal defence including miscarriages of justice. He is emeritus director of the Irish Innocence project and was Irish lawyer of the year at the 2015 Irish law awards. Follow David on Twitter @DLangwallner


Earlier: The Opinion Of The Court


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38 thoughts on “David Langwallner: A Hate Supreme

  1. Cú Chulainn

    It’s not about being‘progressive’, it’s about being a decent honest human being, one who is able to live with compassion and forgiveness with the great challenges that face us as a species.

    1. Mr .T

      Pray tell, what makes one a “decent honest human being”?

      Because many would argue that killing a human with a heartbeat, even if pre-birth, is not the hallmark of a decent human being. Nor is euthanasia, the ending of lives. The same people who claim to be progressive often say that they are the empathetic ones as if its fact, when in reality its a label bestowed upon themselves.

      Some of the more unsavoury racist types also support abortion fyi, as black people are disproportionately more likely to avail of abortion facilities in the US compared to non-hispanic whites, thus keeping the black population down. Those people are certainly not decent honest human beings, but they are pro-choice. The 2 positions are not related in any way.

      1. Cian

        I would have thought that allowing someone that is elderly and in a lot of pain the right to die is a hallmark of “decent honest human being”.

        If someone had a old, sick dog that was in a lot of pain and they didn’t put it down that would be deemed inhumane.

        1. Janet, dreams of an alternate universe

          plus one Cian,
          my Mother plans a walk in the Hebrides in winter once she’s decided and it’s her right,
          just as a woman, a viable real human has the choice of what to do with her body as she sees fit, pregnancy and child care has enough challenges when it’s planned and loved and cared for let alone forced on an unwilling host.

        2. Kin

          I want the public to be able to get a pill so when you have had enough and no longer lol after your self you are not put in the position of being at the mercy of the state
          A good friend had an old friend that has been in a nursing home for 40 years he is lucid maybe twice a day and is one step from being a vegetable
          No enjoyment or quality of life he dose not even know his own name
          It’s heartbreaking

      2. Cú Chulainn

        Well Mr. T, I’m reminded of the allegory of the three men in the cave when I read your reply.

      3. Darrens

        Your question Mr t suggests you are interested in an answer so before I read yours I will use your enquiry to put forward the idea that what makes a decent person or for that matter society .. is recognising that asside from divisive applications for a particular technology, economy or any other tool developed for human interest .. it matters more than anything how it is used and who is allowed to use it… so for example politics do not make for decency.. as a tool of society politics must follows what is decent or it becomes indecent by virtue of its leadership claims … economic values likewise … Having read your examples it is maybe worth saying that euthanasia or abortion in the hands of loving and loved people are gestures of decency that predate medical and economic purposes

    1. Cú Chulainn

      I’m sure you’ve heard of his great party trick which was to lie on the floor at parties and ejaculate without touching himself. The power of the mind he was want to say. All of that set, including Sartre, agreed. Of course, when Ms. D’Beauvior traveled to Chicago she discovered, for the first time, that the mind does indeed play a big part, so do some other smaller but no less important parts. I think she wrote a book about it.

  2. Gabby

    Ireland does not follow the laws of the United States but seems to be much influenced by the cultural norms of the United States.

    1. Nigel

      Not going by the last referendum in the subject, it isn’t. It also has something like 70% approval in the US. The people doing this expect to win elections by means other than just winning votes.

      1. Kin

        Bidens america is looking more and more like Gilead
        But trump in not president just good old joe and his gigantic family bible
        The world is now facing the prospect of WW3 and a nuclear one at that
        But Biden is no JFK
        They really had to poke the bear Knowing exactly that the bear was rabid
        Let’s face it the USA have been droning on for decades about commies
        But hey poke poke poke and it’s as though they really wanted this war to ignite a world war

        1. Nigel

          Trump’s judicial appointments made this decison.

          If Putin’s a rabid bear, he needs to be put down – luckily he’s not a rabid bear, but a calculating strongman who overestimated his military and underestimated Ukrainian resistance.

  3. Tom

    Casey was 1992, not 1995. The idea that Roe was some sort of brilliantly reasoned judgment is demonstrable nonsense: pro-choice liberal jurists past and present have openly acknowledged it as juristic sophistry.

    1. Kin

      I suppose when the medical profession can make a massive fortune out of it they just could not resist in making a killing excuse the pun
      At $3.4 billion a year that is some industry

  4. Mad

    Christ the comments on this are already shaping up to be worse than the trans article

  5. Kin

    Ah well another triumph of the Biden administration
    Seems irony that the government of the liberal mob bans the right to abortion
    What next WW3
    Whoops that’s also on the cards

    1. Nilbert

      The government have nothing to do with this, it is a draft produced by the Supreme court, which is wholly independent.
      Also, its the work of those judges appointed by Trump, not the entire Supreme court.

      So, nothing to do with Biden or the ‘government of the liberal mob’, but there you go.

      1. Kin

        Judges appointed are independent from government
        Are you accusing these judges of been corrupt and doing the bidding of an ex president
        Seems if that is true no president should be able to appoint a judge
        As well as that they are grilled by politicians before being appointed
        This trump blaming seems to be a fetish by democrats and supporters of this failed president who is intent on WW3

        1. Nigel

          He appointed judges who were ideologicaally committed to decisions like this. It’s really not that difficult to understand, but you’re making very hard work of it.

          1. andrew

            My late mother worked all her working life with pre-school children. A woman of unending patience, understanding and compassion, she would essentially spend her time cleaning up spills and messes, calmly and gently correcting incorrect or unruly behaviour and intervening when intervention was needed. All the while trying to help little children understand the world and their role in it.

            When I read your comments and responses to comments on this site, I am often reminded of her.

          2. Kin

            Nigel they were all grilled by the US political representatives
            So it’s a cop out blaming trump
            They also swore an oath to apply the law in a fair and just manner
            And they were passed by both democrats and republicans
            Evidently the US government cannot complain when the Supreme Court rules

            It’s time now that a less divisive abortion law was put to the people and it needs to happen pretty pronto
            God sake it’s not going well for Biden
            Seems since he came to power we see a president that can achieve absolutely SFA

          3. Nigel

            So we can’t blame Trump for the things done by people appointed by Trump? Stacking the deck, there.

            I’m sure all those Red states have less divisive abortion laws ready to go.

          4. Kin

            Nigel read roe vs wade Wikipedia
            It’s a tea strainer since it was revisited in 1992
            So fault the ruling by the Supreme Court judges in 1992
            No wonder this roe vs wade ruling is to be ruled against
            These judges are doing their job
            It’s not from some scheme judges are partaking on to turn the USA to a nation that North Korea would fear to become
            If a law is flawed it needs fixing
            And also this brings the question regarding the EUs federal laws at odds with its members constitutional laws

          5. Nigel

            They are repealing the law because that is their ideology. No other reason. They will also repeal laws relating to contraception, lgtbq rights and other civil rights because that is Republican ideology and they are Republican appointees.

    2. Gerry

      Obama and Biden tried to nominate Merrick Garland to the Scalia vacancy, if you remember, to which the Republicans invented the principle that it was too close to an election for the congress to confirm a SC nominee, a principle revealed as complete horse manure, when they rushed through Amy Coney Barrett in the last two months of the Trump presidency. So, whatever your stance on abortion, you can’t blame Biden for this ruling, (morally right or wrong) the conservative right has been planning to move the court to the right for decades, with particular reference to Roe vs Wade, and they have succeeded.

      1. Kin

        As Obama left office 105 federal judges positions were left vacant
        Trump lied when he said it was 128
        So blaming trump is a non starter
        This is the way the politicians play and both parties are as bad as each other
        It’s now up to Biden to act pronto over this abortion problem gets out of hand and womens lives will be put in jeopardy due to a ruling that was weak in the roe vs wade ruling that is seen as not worth its weight and is flawed resulting in the Supreme Court of the USA making its decision if indeed they rule against roe vs wade

        1. Nigel

          If both parties are the same how come you know which party is more likely to secure abortion access and which party is certain to deny it?

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