Barring something completely unforeseen, president Donald Trump’s nominee for the US Supreme Court, Amy Barrett, will be confirmed by the Senate tomorrow morning (Australian time), delivering a solid conservative majority on the court that could last for decades. No nominee in the past has ever been confirmed so close to an election.
Although the appointment is a triumph for Trump’s Republican Party, there are suggestions that it may backfire, motivating his opponents more strongly to turn out next week for his opponent, Joe Biden. Certainly if they needed any reminder of the damage that a hostile judiciary can do, it was provided last week in Poland.
Back in 2017, when Poland’s right-wing government moved to bring the judiciary under tighter government control, the main concerns expressed were over constitutional issues: that it would make it easier for the government to entrench itself in power and dismantle democratic safeguards, as had already happened in nearby Hungary.
Those concerns have not gone away, although the worst fears have not yet been realised. Instead, the Polish Constitutional Court, in a case brought by MPs from the ruling party, extended itself on another issue: abortion.
Abortion laws in Poland were tightened after the fall of Communism, first in 1990 and again in 1993. The latter change kept it legal only in cases of rape or incest, danger to the woman’s life, or serious fetal defects. Most abortions that took place were covered by the last of those cases, which enjoyed popular support: an attempt by the government four years ago to eliminate it was defeated after huge protests.
Now the court has done the government’s dirty work for it, ruling that legal abortion was in conflict with article 38 of the Polish constitution, which states that “The Republic of Poland shall ensure the legal protection of the life of every human being.”
The decision has not gone down well. Pro-choice protests were held across Poland yesterday, attacking not just the judges but the government and the powerful Catholic church. While the majority clearly supports restrictions on abortion, this seems to be a bridge too far.
It takes Poland further out of the European mainstream. But as usual, women are victims of a double standard. When democratic backsliding is discussed in other contexts regarding Poland or Hungary, it’s a matter of those countries reneging on commitments that they had explicitly made upon joining the European Union.
But reproductive freedom was never included in those commitments in the first place. Quite the contrary: when Malta, the only EU member whose abortion laws are even more stringent than Poland’s, joined the EU in 2004, it extracted a promise that EU legislation would never be allowed to modify them. It’s no surprise that EU leaders have so far kept quiet about the Polish decision.
Yet what the situation in both Poland and the US illustrates is that democracy and human rights – including women’s rights – are closely intertwined. The same politicians who want to trash democratic safeguards and undermine the rule of law are almost invariably hostile to reproductive rights and other markers of equal citizenship for women; authoritarianism cannot be neatly cordoned off in a single domain.
If Biden wins the presidency next week, he will have to make some difficult decisions about how to deal with a Supreme Court with a baked-in hostility to his agenda. And a more liberal government in Poland, whenever it comes, will have to deal not only with its own rogue judiciary, but with the more general misogynistic attitudes that have brought things to this point.
The World is Not Enough 
Is an American judge likely to go as far as to not just overrule Roe v Wade and clear the way for laws banning abortion, but to actually lay down that the Constitution requires such laws to be in place? Yes. Polish judges (and, in the 1970s, West German judges) did rule that their constitutions required this, but the European continental juristic tradition is much more at home with state intervention than the common-law tradition, which emphasises negative liberties.
Ironically, Europeans tend to go in one of two opposing ways on this – either they don’t want judicial review, as in France before the 1980s, because you need a powerful legislature with unquestioned authority to enact positive rights; or they want very expansive judicial review, as in Germany since 1945, to ensure positive as well as negative rights are protected. But in both cases the common thread is that they think the Anglo-American approach – that courts will invalidate unlawful executive and legislative actions, but just leave a void (eg, Canada after Morgenthaler), and not tell the other branches what the right ruling should be – is half-hearted and incoherent.
There was some talk in the USA four decades ago of passing a Human Life Amendment to actually ban abortions, and/or interpreting “not deprived of life” and “equal protection” in the 14th Amendment to include the unwanted and unborn as well as the wanted and/or born. Robert Bork himself argued against both on the grounds they shifted too much power to the judiciary. Even then, the draft of the HRA I most often saw floated about relied on “Congress and the several States” having concurrent power to restrict abortions, with the more restrictive rule prevailing – which would mean that if the Democrats controlled Congress and your state legislature, they could re-legalise abortion on demand without contravening the HRA.
By contrast, the “equal protection” argument against abortion (that infanticide laws should not depend on the day-so of a private individual) could, in theory, have been circumvented by repealing all infanticide laws, so that women who lost wanted babies could not sue doctors for negligence. Clearly this would have been a political non-starter – akin to abolishing marriage to prevent gays and lesbians marrying (as was briefly mooted), or to abolishing public schools to evade desegregation (as was actually tried in some Southern States, apparently without much success).
Which leaves the “not denied life without due process of law” gambit. Even there, the DeShaney precedent from 1989 is that the State is not “denying life” to someone by preventing others from killing them.
Jurisprudential arguments aside, I suspect that going any further than “Roe is hereby overruled and States can again ban abortion” would fatally split the Republican coalition. “Abortion is hereby prohibited by the Constitution, everywhere in America” would set the blue-state business wing of the GOP against the red-state religious wing and crack their coalition apart.
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To explain this distinction more clearly… When European constitutional courts leave room for the legislature to make the final decision, they tend to approach it through the lens of “margin of appreciation,” ie “the legislature may adjust the thermostat but cannot choose a room temperature warmer than 40 Celsius or colder than 30 Celsius.” Continental judges (especially in the last 3 decades) are willing to redress errors of either omission or commission.
Whereas Anglo-American judges approach judicial review much more on the basis that judges will intervene if the legislature or executive lifts a finger to actively do something unlawful, but will not intervene if the legislature simply refuses to act. The political branches are not permitted to change the thermostat from 32 to 33 degrees, but on the other hand if a cold snap sets in and 32 degrees is now too cold, the courts will not compel them to move the dial. (In the USA and Australia, this applies to both legislative and executive actions. In the UK, which does not have an entrenched Constitution or judicial review of legislation, it still applies to administrative law).
The Hyde Amendment can be viewed as a common-law sort of compromise: legislators were not allowed to ban elective abortions, but were not compelled to find them either. By contrast the West German 1970s abortion ruling did not approach it as an action/ abstention question, but as “must permit/ may permit/ must forbid” depending on exigencies and trimesters. True, Roe also factored those in, but the six white males in the majority only distinguished between “must permit” and “may permit”; they did not include “must forbid” because that is, as noted, foreign to Anglo-American constitutional habits.
The USA’s one experiment with a constitutional ban on private conduct – prohibition – was not a success. Even that depended on enforcing legislation (the Volstead Act), which could be – no pun intended – watered down by Congress as public support of the alcohol ban rapidly dropped (eg, the Act was amended in the 1920s to exclude light beer). Lawrence Tribe also counts the Thirteenth Amendment’s ban on slavery as a second, rare prohibition of private conduct, and certainly there is slavery (human trafficking) that operates in that shadows of the law; but even so, the simple action of entrenching a rule that “all attempts to claim ownership over another human being outside your own womb shall be deemed legally null, void, inoperative and of no effect” goes a long way towards dismantling slavery as an institution. So the Thirteenth Amendment differs from the Eighteenth in involving at least as much “invalidating government action” as “punishing private conduct.” It’s not as if most alcohol before 1918 was being brewed in State or Federal government-run distilleries, whereas slavery required extensive support from governments, including penalties for failure to cooperate with it (ie, telling Quakers and other abolitionists, even outside the Confederacy, that their “religious freedom” did not give them a licence to disregard laws against sheltering fugitive slaves).
The bottom line is that what judges do in a European (unitary) state like Poland is not a strong precedent for what American judges would do. I suspect that even with Roe repealed, California and New York would promptly enact bans on doing business with “Anti-Choice” States and the local chambers of commerce in the latter would soon come to heel, as they did with the Bork nomination.
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Thanks Elizabeth. Yes, I basically agree; I don’t think there’s any immediate risk of a conservative Supreme Court doing what Poland’s did. But I can certainly see it not just allowing state prohibitions on abortion but also striking down a federal right-to-choose act, should a Democrat Congress pass one – on the (quite logical, giving its starting point) basis that if the 14th amendment doesn’t guarantee a right of abortion against the states, then there’s no head of power for federal legislation on the subject either. And for the future, who knows what bizarre legal theories they might come up with?
Politically, as you say, it’s a losing proposition for the Republican Party. The majority of the electorate is pro-choice; the strategy in the past has always been to use the issue to rile up the base while ensuring that nothing too serious actually gets done. As soon as it has a real impact, they’re going to pay the price.
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Charles, Gough Whitlam got it right. There are far too many cases where abortion should have been compulsory and retrospective. Especially now in Poland and the US.
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very true, Charles. Like the dog chasing the proverbial car. Or like the anti-abortion Poles who, you note, support some restrictions but think these go too far.
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