Given the United States’ role as trendsetters globally, the US Supreme Court’s decision in Dobbs v Jackson will resonate in a particular way in Western Europe, which tends to follow the States in sociocultural matters by a decade or so.
That the United States ended up with some of the most permissive abortion laws on the planet – at this point, only North Korea, China, Canada, South Korea and Israel still permit unlimited abortion on demand – is largely a product of the decision in Roe v Wade, which found a ‘right to abortion’ in penumbras and emanations from the US Constitution.
In constitutional law terms, the decision in Roe was so ill-founded that even liberal justices were given to taking potshots at it. Ruth Bader Ginsberg, hardly a conservative doyen, famously described the decision as “breathtaking”, mentioning that Roe fashioned “a regime blanketing the subject, a set of rules that displaced virtually every state law then in force.”
A genuinely originalist decision in Dobbs may well have found that an unborn child enjoys the protection of the Fourteenth Amendment’s Due Process and Equal Protection Clauses in their original public meaning, as the Court was urged to do by Prof. Finnis of Oxford University and Prof. George of Princeton University, but shrunk from doing so.
The decision also avoided dispensing with substantive due process as advocated for by Justice Thomas in his concurrence to the judgement, an opinion that had it been a decision of the Court would have set the groundwork for the rollback of much of the socially-liberal judicial policymaking of the court over the past half century.
Instead, it set itself the more limited task of repealing on constitutional grounds a poorly-decided judgement, returning the US in manhy respects to the status quo ante where abortion was a matter for the people of the US states and their elected representatives to decide upon.
In doing so, it represents one of the most profound constitutional decisions in the history of American jurisprudence, although its impact on abortion rates across the US as a whole may be more muted than the furore around the decision suggests.
The conservative justices on the court eschewed rulemaking around viability, trimesters and rights, and have told the American people that abortion jurisprudence and the consequences thereof are on them.
In light of the judgement, with limited exceptions abortion is now illegal in Alabama, Arkansas, Kentucky, Oklahoma, Missouri, and South Dakota. On the other hand, other states permit the barbarity of abortion up to birth, namely Alaska, Colorado, New Hampshire, New Jersey, New Mexico, Oregon, Vermont, New York, and the District of Columbia. What this wide discrepancy in abortion law means for the federal model of the United States remains to be seen.
To be sure, striking down the best well-known law in US legal history is a profoundly symbolic act. The decision comes as many Eastern European EU states have been tightening protections for the unborn. When – and in what manner – Western Europe chooses to follow suit remains to be seen, but certainly Western societies’ current social liberalism are historically almost unprecedented, and that a generalised reaction to wokeness may well prove to be a catalyst to a rediscovery of our societies’ historically more moderate mores. As Ciarán Kelly of the Christian Institute has written, hundred of thousands if not millions of lives might well be saved as a result of this decision. If that proves to be the case this is something to be welcomed. Meanwhile, the Catholic Bishops of Scotland have stated “If we are to be the caring and compassionate society we aspire to be, upholding the sanctity and dignity of all human life must be the foundational principal upon which that aspiration rests.”
At our recent Congress – in recognition of the sanctity of life – the Sovereignty membership voted to endorse a policy statement that we will seek to advance policy to afford greater protection in law to unborn life. Both in our current context and in an independent Scotland, we will advocate for the law to take into account the rights and interests of the unborn, while advocating with equal vigour for enhanced support for mothers and families struggling with pregnancy and parenthood.
If you likewise believe we can do better by Scottish families, consider joining Sovereignty today.