The predictable but terrifying moment came. Last week, the US Supreme Court published their long-awaited judgment overturning Roe -v- Wade and in turn ripped up enshrined constitutional protections for women to choose to have abortions. The decision effectively eliminates abortion access across more than half of the US and forces many pregnant women to have to travel to a handful of states with abortion protections in place. The ruling drags the US back half a century – the most direct affront to the slow struggle for women’s liberation in modern American history – and will lead to women dying needlessly, especially the poorest in American society. After all, there is no such thing as banning abortions, but you can ban safe abortions.
Not enough can be written about the devastating effect of this development. But there are wider lessons for progressive politics. Since the decision last week, a debate has ensued as to the rights or wrongs of limits, or indeed bans, on abortions. However, for those whose minds are made up on a woman’s right to choose, we should focus on how we have ended up with this regressive change.
The first lesson must be that politics trumps law. Although the American federalist constitution encourages litigation to embed social change (see, for example, Brown -v- Board of Education, banning racial segregation in schools), ultimately such methods are weaker than the more all-encompassing, more difficult, and at times intangible process of building democratic support and winning elections on such terms. There has been a degree of complacency in American politics over the Barack Obama presidency and beyond, as public opinion against the right to choose increased and liberals grasped desperately to a court judgment from 1973.
Abortion is, fundamentally, a moral and political issue that needs to be won in the democratic sphere. Whilst morally indignant to suggest otherwise in politics, there is nothing in the American constitution to suggest the right to abortion exists (though of course it should). Many lawyers, wholly-pro choice in their personal opinions, accept the legal reasoning given last week. But liberal America has failed to find democratic means by which to protect women – often frustrated by the federal constitution and the limits placed on presidential powers. Only yesterday, did President Joe Biden final announce fresh attempts to codify the rights in Roe on a national scale.
Indeed, now the issue is back in the political sphere, the Republicans may be in for a bit of a shock. There has been a huge shift towards the Democrats since Roe was overturned. Whilst America remains somewhat divided on the issue – there is still an over 20-point lead for abortion protections – the issue appears to have politicised many of those appalled once more. It is a failure of Democrats that the reversal of a court judgment is the catalyst for this political momentum, but they must grasp this moment to fight back.
In the UK, there has been a growing phenomenon to use litigation to further social or political goals. I do not criticise such attempts – the courts will and must hold the government to account, on human rights, on legal commitments to climate change and any other unlawful behaviour or conduct. But a culture is also developing that sees courts as the forum for such change above politics. This must be thwarted not by criticising lawyers (I am one!), but by reenergising our politics, from within political parties and outside, and always remembering the power and importance of persuading the public and in turn our lawmakers rather than concentrating on judges. Politics is the real domain for changing the world, not our courts.
Since the Supreme Court judgment, conservative commentators in the UK have dismissed the notion that here in the UK we have to do much. There is a consensus, they say. Do not rock the boat in discussing these difficult issues. The historian Dominic Sandbrook wrote an essay attempting to calm all of us down, pointing out we are different to America and the judgment has nothing to do with us. He is right that we are essentially powerless to effect change in America but it is a reminder of how social progress can be reversed if we do not remain vigilant to conservative forces. That is why Stella Creasy is right to look for initiatives by which to further and strengthen legislation to offer greater protections for women.
The reversal of Roe is a symptom of different facets in American politics. It has been a generational goal of the small, shadowy, well-funded, right-wing lobby that holds sway in the Republican Party, ensuring candidates for President must adopt extreme positions on abortion. Ronald Reagan, for example, introduced one of the most liberal pieces of abortion legislation when governor of California – only to explicitly criticise his own actions when he was attempting to gain the republican nomination. Such powerful lobby groups are dangerous within our politics. Although the issues are not connected in the slightest, the takeover of the Conservative Party by extreme Brexiteers is not an unhelpful parallel.
The news is also a symptom of aspects of the unique American constitution. The Supreme Court is a political battle-field. Donald Trump, unfortunately for the rest of us, had the opportunity to pick three such judges, swaying the balance of the bench significantly. It need not matter that it was Donald Trump, or if in fact it had happened under Obama, such a mechanism for appointing the most senior judges in the lands offends the basic principle of the separation of powers.
This tells us that our politics and constitution matters. Too often, people who campaign on such issues such as judicial appointments, the use of Henry VIII clauses and secondary legislation, political funding, the House of Lords, and electoral systems are told that these are not the concerns of the British people. Of course, they do not come high up the list of priorities in the midst of a cost of living crisis, but the way our politics and constitution operates does ultimately affect all our lives. In America, this development is the saddest symptom of a political system that has been stretched almost to breaking point – after all, there was an insurrection on capitol hill two years ago – with the lurking sense more is to come.
Do not listen to those that say there is nothing to fear here in the UK. That does not mean that abortion rights will be restricted imminently, but progressives should never be complacent on defending and strengthening hard-fought rights. There are many lessons from the distressing news from across the pond. We must learn them.