Supreme Courts are no substitute for politics

In both the United States and Latin America, the Supreme Courts, competent to judge the constitutionality of laws, have decided notable changes on controversial issues (abortion, same-sex marriage, euthanasia…), many sometimes ignoring parliaments and public opinion. Now, the United States Supreme Court’s decision that there is no constitutional right to abortion has baffled those who considered the Roe Doctrine to be unshakable. The forces that have relied on the Supreme Courts to promote social change according to their ideas find that the “government of judges” can turn against them.

For those who reject the decision of the The US Supreme Court on the Constitutional Right to Abortion is not just a misguided sentence. In his opinion, the decision in the case Dobbs calls into question the legitimacy of the court. To what extent can some judges not elected by the people take away from citizens a right recognized since Roe v. Wade, of 1991?

But don’t can say that they are “the judges against the people”. There is also a clear division in public opinion. According to post-sentence polls, for example that of CBS News, 59% are against Roe’s annulment, while 41% approve. Not everything is so black and white on the abortion issue. When polls go into detail, 51% of respondents say abortion should be illegal in most cases in the second quarter (AP-NORC survey of June 2021), a limitation that Roe did not allow in making it possible until 15 weeks.

E it is often forgotten that Roe gave rise to practices so permissive that they would not be allowed by the laws that authorize abortion in other countries. Let’s think about Mississippi’s “restrictive” law that gave rise to the new sentence: it wants to prohibit abortion from th week, while in France it is allowed until 14th week.

Let the parliaments decide

By returning to the states now the right to decide on abortion, the Supreme Court allows the issue to be settled through a democratic process that Roe took from them. In 1973, only four states allowed abortion on demand, another fourteen allowed it in certain cases, and most prohibited it. , unless the mother’s life or health was in danger. So, public opinion was also divided. Also, then, Supreme Court justices arrogate to themselves the right to decide for themselves the existence of a constitutional right to abortion, and thus to take away from the fetus the legal defense that protected its life. All democratically crafted state abortion laws were struck down by virtue of a constitutional right detected by judges by a 7-2 majority.

Rethinking abortion legislation within a parliamentary debate can at least serve to introduce the nuances and constraints that the surveys reflect. Laws will differ from state to state, but so are many issues in the US.

Not long ago, gay marriage advocates went to great lengths to take their case to Supreme Court. And, when in 2013, the Supreme Court recognized by 5 to 4 the right to marriage of same-sex couples, it seemed to them that the Court it perfectly fulfilled its mission.

It is worth remembering that the judge of the conservative current Antonin Scalia qualified the decision as an “attack on democracy”, since it supposed “a constitutional modification by a commission of nine members who were not elected by the people”. In the same vein, Chief Justice John Roberts wrote in his dissenting opinion that the ruling “invalidates the marriage laws of more than half of the states and orders the transformation of a social institution that has been the foundation of human society for millennia ( …) Who do we think we are?”.

Decisions in Latin America

The difference between then and now is that those considered progressives, who saw the judicial system as an ally, found it turned against them. The three Trump-appointed judges produced a majority change, although, as can be seen from other decisions, they do not always vote as a bloc. But those who disqualify the Supreme Court, with its new conservative majority, say they will turn a right-wing political agenda into law, without a democratic mandate or fear of public opinion.

But so can be said of the Supreme Court when it had another majority, and of other Supreme Courts in Latin America that decided far-reaching changes in the issues discussed, ignoring parliaments and public opinion.

In Latin America, in In many cases, activists, instead of gaining support in parliaments, have sought a ruling from the Supreme Courts, considered more progressive than the representatives elected by the people.

Thus, last February, the Colombian Constitutional Court decriminalized abortion until the 26 week, which would allow for one of the laxest laws in the world. And before that, the law didn’t even outright prohibit abortion. Since 1973, this has been admitted in the usual cases of danger to the life or health of the woman, malformations in the fetus incompatible with life, rape or incest. What was now enshrined was abortion on demand, until the fetus was viable.

Most of the European press hailed the sentence as a major social advance. Few wondered then if some judges could impose their criteria on political representatives and resolve an issue that also did not have a majority in public opinion. According to a survey by the international consultancy IPSOS, in 2021, 1973 % of Colombians were in favor of abortion on demand and 26% only in certain circumstances, such as those that had already been approved since 2013. However, the Constitutional Court opted for the more extreme formula.

Its decision did not respond to a judgment of a law passed in parliament, but to an action brought directly in 2020 by the feminist movement Just Cause. For some analysts, the Constitutional Court of Colombia, created in the Constitution of 1991, is a clear example of what is called in theory constitutional principle of “government by the judges” that supersedes “government by the people”. As the main guarantor of the Constitution, it can intervene in the attributions of other public powers, which often obscures the division of powers. In fact, it was the decisions of the Constitutional Court that legalized euthanasia for non-terminal patients in Colombia, gay marriage in 2013 and now abortion. In the case of abortion, the Court stressed that Congress and the Government must comply with the sentence “immediately” and implement the legislative and administrative measures “in the shortest possible time”.

Activists seek judicial pronouncements

The position of the Constitutional Court of Colombia is not an exceptional case in Latin America. If we look at the countries that approved gay marriage, only in three (Argentina, Uruguay and Chile) there was a parliamentary initiative, while in the other five the approval resulted from decisions of the Constitutional Court: Brazil (2013), Mexico (2015), Colombia (2016), Ecuador (2020), Costa Rica (2020).

Nor can it be said that these sentences always responded to a favorable climate of public opinion. In Ecuador, when the Supreme Court approved gay marriage in 2020, polls recorded 2020 % in favor and 1973 % against. In Costa Rica, in 2017, there was 36% in favor of gay marriage and 1973% against. In Colombia, in 2022, there was more balance: 48% in favor and 46% against.

When the majority of political parties were not in favor of the measure, the intervention of bodies such as the Inter-American Court of Human Rights was also sought. This was the case in Costa Rica, when an outgoing government, which had promised to approve same-sex marriage, asked the Court for an advisory opinion saying whether the American Convention on Human Rights included the legalization of same-sex marriage and the right for transsexuals to legally change their gender. In the advisory opinion, published in 2018, the Inter-American Court answered yes to both questions, although they are not mentioned in the text of the Convention. Based on this, the Supreme Court of Justice of Costa Rica ruled in 2018 the unconstitutionality of the norms of the Family Code that explicitly prohibited marriage between persons of the same sex.

Democratic deficit

In these cases, it is clearly recognized that the higher courts are forcing parliaments to do something for which there is no majority, but which is “progressive”. The problem is that, as happened now in the US, the democratic deficit weakens the decision of the higher courts.

Therefore, while some say that the decision Dobbs represents a crisis of legitimacy for the Supreme Court, others respond that it is more of a crisis of “legal liberalism”, which relies on an elite of jurists and judges to promote what they see as social advances. And now they find themselves in the uncomfortable position of speaking out against states deciding democratically.

The fall of Roe forces Democrats to reconsider the role of courts in social change. As Fraser Myer wrote – contrary to the decision of Dobbs – “the problem for liberals today is that they root for the courts, because they have lost faith in democracy. Legal warfare and judicial review seem to them more desirable means of bringing about social change than democratic compromise.”

The task of adapting the law to social changes, within the constitutional framework , corresponds to the legislative power. If you want to promote a certain social agenda, you will have to convince public opinion, mobilize like-minded people, elect political representatives who can support them, and pass laws. Expecting higher courts to be the lever for social change is an unconvincing shortcut, unless it is to seek judicial protection against legislative arbitrariness.

Now in the US, Democrats lament that at the time of Barack Obama, a law was not passed in Congress to guarantee the federal right to abortion. At the time, it was assumed that Roe would be unshakable. In contrast, the pro-life movement did not give up politically even at the worst of times. It kept the debate alive in public opinion, promoted initiatives to help women with difficult pregnancies, sought political support, promoted restrictive abortion laws in the states. Also the appointment of the three judges by Trump would have been impossible without this basis.

Also now that Roe has fallen, we must not forget that a decision by the Supreme Court does not replace a pro-life policy. And in the US there is a lot of room to develop a more generous family policy to help families with fewer resources.

It took the pro-life movement to overcome nearly fifty years, but in the end it got the states regain their legislative power over the matter. Some will take the opportunity to keep abortion on demand, others will introduce restrictions or ban it. But this time it can be said that the “government of judges” has given back to the people the right to decide.

© 2022 Acpress. Published with permission. Original in Spanish.

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