By Peter Singer, Project Syndicate
In the wake of the US Supreme Court’s decision overturning Roe v. Wade, which established a constitutional right to abortion, many are speculating about which rights the Court will take away next. In fact, the decision’s rationale for throwing out a half-century of jurisprudence implies that the Court has too much power.
MELBOURNE – Every woman should have the legal right safely to terminate a pregnancy that she does not wish to continue, at least until the very late stage of pregnancy when the fetus may be sufficiently developed to feel pain. That has been my firm view since I began thinking about the topic as an undergraduate in the 1960s. None of the extensive reading, writing, and debating I have subsequently done on the topic has given me sufficient reason to change my mind.
Yet I find it hard to disagree with the central line of reasoning of the majority of the US Supreme Court in Dobbs v. Jackson Women’s Health Organization, the decision overturning Roe v. Wade, the landmark 1973 case that established a constitutional right to abortion. This reasoning begins with the indisputable fact that the US Constitution makes no reference to abortion, and the possibly disputable, but still very reasonable, claim that the right to abortion is also not implicit in any constitutional provision, including the due process clause of the Fourteenth Amendment.
The reasoning behind the decision in Roe to remove from state legislatures the power to prohibit abortion was clearly on shaky ground. Justice Byron White was right: The Roe majority’s ruling, he wrote in his dissenting opinion in the case, was the “exercise of raw judicial power.” The Supreme Court exercised that power in a way that gave US women a legal right that they should have. Roe spared millions of women the distress of carrying to term and giving birth to a child whom they did not want to carry to term or give birth to. It dramatically reduced the number of deaths and injuries occurring at that time, when there were no drugs that reliably and safely induced abortion.
Desperate women who were unable to get a safe, legal abortion from properly trained medical professionals would try to do it themselves, or go to back-alley abortionists, all too often with serious, and sometimes fatal, consequences. None of that, however, resolves the larger question: do we want courts or legislatures to make such decisions? Here I agree with Justice Samuel Alito, who, writing for the majority in Dobbs, approvingly quotes Justice Antonin Scalia’s view that: “The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”