Opinion
Roe v Wade overturned – will it set a precedent for Australian law?
25th Aug 2022
Roe v Wade establishes constitutional protection for abortion in 1973
If you had recently asked someone about the significance of the US Supreme Court decision in Dobbs v Jackson Women’s Health Organization, you’d likely get a blank look. But if you had referred to ‘the case that overturned Roe v Wade’, it would be quite different.
Roe v Wade, the 1973 US Supreme Court decision establishing constitutional protection for abortion, is arguably the most well-known legal case in the English-speaking world.
Since it was handed down, there have been annual anti-abortion protests on its anniversary, and almost every American presidential hopeful has expressed a view on it, even though a president has no direct power to change the outcome of a case such as this.
Appointment of conservative judges to US Supreme Court
The appointment by President Trump of three conservative justices to the Supreme Court provided the opportunity for a challenge.
A number of states wishing to ban or severely restrict abortions had already enacted so-called ‘trigger laws’ for that purpose. These would have effect immediately in the event of a successful challenge to Roe v Wade; and the challenge by the Mississippi Department of Health has now been upheld.
Legal systems in US and Australia
While the important questions now concern the future rather than the past, understanding the past helps in answering them.
In some respects Australia resembles America: founded on English common law and the Westminster model of government; with state and federal governments, and a hierarchy of courts culminating in a top court (in Australia the High Court). But there are also lots of differences.
The way American courts decide cases is fairly similar to the courts in Australia. However, differences between the constitutions of each country have resulted in some differing approaches.
US Constitution in a modern age and intentions of the founding fathers
In cases involving the Constitution of the United States itself, American courts, especially the Supreme Court, are given to deep historical delving into the intentions of the founding fathers, and the societal norms and values of that time.
As with any other court system, there is wide variance between judges in the weight given to these considerations, with some ‘originalist’ judges emphasising reliance on events at the time of the Declaration of Independence, with others interpreting the Constitution in a way they see fitting for current times.
Generally however, the way constitutional cases are decided is heavily influenced by what was happening around 250 years ago; and in the present case, even earlier.
Bill of Rights and the Ninth Amendment
The ‘Bill of Rights’ is a name given to the first ten amendments to the Constitution. Dating from 1791, the Bill of Rights has for practical purposes been around pretty much as long as the Constitution itself.
Originally intended to apply only to the federal government, the Bill of Rights is now taken in some circumstances to apply to state legislatures.
More importantly, it is a very brief document specifically mentioning only a few rights (for example freedom of speech, the right to bear arms, and the privilege against self-incrimination).
However, the Ninth Amendment says, in essence, that the Bill of Rights should not be interpreted as denying some right to a citizen, just because it isn’t specifically mentioned in the Bill of Rights. This has, obviously, generated plenty of judicial debate.
Fourteenth Amendment to US Constitution
Complicating the situation is the Fourteenth Amendment to the Constitution. Enacted in the wake of the American Civil War, its principal purpose was to provide constitutional foundation for the Civil Rights Act. However, one single sentence in this amendment has arguably provided more material for argument and dissension than any other in the Constitution:
‘No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.’
Knowing what the Fourteenth Amendment says is important in understanding the decision in Dobbs v Jackson. So, what did happen in that case?
Majority decision in Dobbs v Jackson overturns Roe v Wade
Reporting of Dobbs v Jackson variously says that Roe v Wade was overturned by a majority of 6-3 and 5-4. The difference is Roberts CJ, who agreed with the other five justices, but in some respects did not go quite a far as they did, with a preference to limit Roe v Wade rather than striking it down altogether. When ‘the majority’ is quoted, what is said is generally taken from the judgment written by Alito J.
Obviously, there is no reference in the Constitution to abortion, yet in Roe v Wade the Supreme Court said that protection could be found in the Constitution for the right of women to obtain an abortion. So where, in 1973, did the court find that protection?
Right to privacy and protection of liberties
Focusing in particular on the Ninth and Fourteenth Amendments, the court drew on the Bill of Rights to find that the citizens had a right to expect that the government would not intrude into deeply personal and individual matters. The First Amendment allowed citizens to say what they thought. The Fourth Amendment kept authorities out of their homes except with a proper warrant. And so forth.
In that way the court found a ‘right to privacy’, although (as the majority in Dobbs v Jackson pointed out) the word ‘privacy’ is nowhere to be found in the Constitution. The court also found comfort in the ‘due process’ provision of the Fourteenth Amendment as protecting liberties generally, and not being confined to legal procedures.
Supreme Court decision in 1965 strikes down state law banning sale of contraceptives
A few years earlier, in 1965, the Supreme Court had, in Griswold v Connecticut, struck down a Connecticut law forbidding the sale of contraceptives on essentially similar grounds, including that a doctor prescribing contraceptives was exercising a First Amendment right, which was infringed if the patient was prevented by law from acting on that advice.
Unlike abortion though, contraception was not especially controversial; few states forbade the sale of contraceptives and the case did not excite great controversy.
Roe v Wade found to be ‘egregiously wrong’
In Dobbs v Jackson, however, the majority said that the court’s reasoning in 1973, striking down the Texas anti-abortion law, was pretty much nonsense. Not mincing words, the majority said the decision was ‘egregiously wrong’ and that the court had ‘either ignored or misstated history’.
Citing famous English jurists from the 17th, 16th and even 13th centuries to the effect that abortion after ‘quickening’ (‘foetal viability’ in more recent parlance) had always been viewed as a crime, the majority said that there was no right to abortion ‘deeply rooted’ in America’s history, which could attract the indirect protections relied on in Roe v Wade.
Indeed that case had ‘short-circuited the democratic process’ by denying to citizens of states the ability to urge elected representatives to ban abortions.
Impact of Dobbs v Jackson in Australia
In America, state laws permitting abortion will stand. Dobbs v Jackson does not prevent a state from allowing abortions: it just means that laws prohibiting abortions will now be valid and enforceable.
In Australia, as in America, laws of this kind are the responsibility of the states and, although there are differences between states and territories, abortions are permitted (subject to some restrictions, but none of the extreme kind found in America).
Federal government’s ability to exercise influence in absence of Bill of Rights
By contrast with America, however, there is no Bill of Rights or similar provision in The Australian Constitution which would enable the striking down of a harsh or oppressive state law.
The federal government can exercise influence in areas in which it has no constitutional power through s96 of The Australian Constitution, allowing it to give grants to the states ‘on terms and conditions’.
Federal governments have used s96 grants in all sorts of areas (for example, influencing school curriculums by providing additional funding for inclusion of particular subjects), but a state is not obliged to accept any such grant; and the federal government has no compulsive powers.
So, while Dobbs v Jackson may give aid and comfort to anti-abortion lobbyists in Australia, it is unlikely to have any direct impact.
Perceptions of what is legally and morally right can change over time
That Dobbs v Jackson is unlikely to set any precedent for Australian law is not to say that there will be no effect at all. Already there have been statements, coming from sources ranging from community groups to leaders of governments around the world, decrying the decision.
What is demonstrated though, is that perceptions of what is morally right, and of what is legally sound, do not always coincide. Although the majority in Dobbs v Jackson may have been of a conservative political persuasion, in emphasising the Supreme Court’s right to overrule prior decisions (which the Australian High Court has done on a number of occasions), the majority described as ‘infamous’ the decision in Plessy v Ferguson, overruled in Brown v Board of Education.
The former decision, in 1896, perpetuated the segregation of African-American people; it was overruled by the latter, in 1954, requiring the admission, to previously ‘whites-only’ schools, of African-American students, and resulting in images, sent around the world, of the Governor of Alabama, George Wallace, standing in the doorway of the University of Alabama to block the entry of African-American students.
So while it is easy to equate political persuasion with judicial inclination, the truth is not always that simple.
The future after Dobbs v Jackson
Prior to the appointments made to the Supreme Court by President Trump (Kavanaugh, Gorsuch and Coney Barrett JJ), Roberts CJ (appointed by President George W Bush, and moderately conservative), not closely aligned with either the progressive or conservative factions on the bench, had the ability to influence the court’s approach to its task. Since his appointment in 2005 he has frequently been the swinging vote needed to steer the court’s decisions away from the extremes of either faction.
But now, the Chief Justice has in effect lost this ability. Together with Alito and Clarence Thomas JJ, the new appointees form a block that can change the court’s approach without the need to rely on the Chief Justice’s support. Thomas J, in a separate decision concurring with the majority in Dobbs v Jackson, foreshadowed the possibility of successful challenges to other decisions enlarging personal freedoms.
These decisions include Griswold v Connecticut, Lawrence v Texas (declaring laws criminalising male gay sex unconstitutional), and Obergefell v Hodges (paving the way for gay marriage).
So it is hard to predict the future, not merely of civil liberties but of the court itself. It is frequently said that systems of justice only work effectively where the outcomes they produce are broadly in line with the expectations of the communities they serve.
Since its establishment, the Supreme Court has made some controversial decisions. The unequivocal terms of the Second Amendment right to bear arms, and the power of the gun lobby, have resulted in the striking down of gun control laws with wide community support over a long period of time. But, throughout the history of the nation, the Supreme Court has generally taken a direction consonant with the expectations of the American people.
Here, it seems beyond dispute that, the passion of the anti-abortion lobby in the US notwithstanding, a substantial majority of the American people disagree with the outcome in Dobbs v Jackson.
The present make-up of the bench will last for a long time, and if decisions follow that are similarly divergent from the mood of the American people, the American legal system may find itself in uncharted waters.
This is an edited version of an article first published by Stacks Law Firm.
The ALA would like to thank Geoff Baldwin for this contribution.
Geoff Baldwin has worked at senior management levels in the public and tertiary education sectors, as an independent consultant providing management advice, and in the legal profession. His experience includes industrial relations litigation, property and leasing, commercial and administrative law advice, and workplace law. Originally trained as a scientist before being admitted to legal practice in 1977, Geoff has appeared in a range of employment tribunals and has instructed in matters before the Supreme Court.
The views and opinions expressed in this article are the author's and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).
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