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  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  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