Does Judicial Supremacy Limit Social Progress? A Comparative Analysis of Abortion Rights in the US, Canada, and the UK – Harvard Political Review

On January 22, 1973, the national conversation on abortion was supposed to end. Hailed as a landmark legal decision, Roe v. Wade sought to guarantee a womans right to abortion, ruling that a pregnant woman has a right to privacy in her decision on whether to bear a child.

However, in the five decades that followed, the debate over abortion has persisted and polarized the nation. In case after case, restrictive laws slowly chipped away at Roe, leaving abortion rights in peril. From 1973 to 2019, states passed over 1200 abortion restrictions. This summer, the Supreme Court may even overturn Roe v. Wade, despite the fact that most Americans would oppose such a move.

Interestingly, the American story of an endless back-and-forth over abortion may be the exception, not the rule. Canada and the United Kingdom did exactly what Roe was supposed to accomplish, but never could. They settled the debate.

How did three liberal democracies, beginning at relatively similar starting points in the late 20th century, end up in such different places on the issue of abortion?

Let us begin with the United States.

The defining feature of Roe is that it was an attempt at judicial, rather than legislative, change. And its disappointing legacy has led some to lose faith in the power of the courts as vehicles for social change. In his groundbreaking book, The Hollow Hope, Gerald N. Rosenberg argues that significant social progress cannot be achieved through litigation. He argues that the court is constrained by a variety of factors and thus unable to accomplish social reform. For instance, the Supreme Court lacks the power of implementation and therefore relies on cooperation from the other two branches of government.

This is paradoxical because the Supreme Court appears all-mighty, so much so that the U.S. is often referred to as a model of judicial supremacy. Indeed, judicial review allows five justices to yield power over a whole government and overturn democratically approved legislation. While the judiciary appears to rule supreme in the United States, this perception stems primarily from its ability to overturn laws rather than meaningfully change the status-quo on its own. While the judiciary is powerful, it is not powerful in the way that the pro-choice movement would hope.

Rosenbergs controversial findings on the limitations of the judiciary have been debated for three decades now. Critics have raised counterexamples of social reform through the judiciary, such as the Supreme Court case of Obergefell v. Hodges which mandated that states license and recognize same-sex marriage. Rosenberg, in turn, has responded by showing that his theory still holds true and that his critics have overstated the importance of the courts even when it appears as though they have achieved great victories. I weigh in on this ongoing debate through a different comparative perspective. Instead of comparing outcomes on different social issues in the same country, I look at the same issue across different countries, arguing that the experiences of the United Kingdom and Canada are consistent with Rosenbergs contention. Courts can rarely catalyze long-lasting social change.

The United Kingdom

In the United Kingdom, there was no Roe v. Wade equivalent no famous legal battle, no nine men in robes ruling on womens rights and, ironically, no ambitious attempt to speak the final word on abortion.

Instead, after debate in the legislature, there was the Abortion Act of 1967, a parliamentary act providing a framework for legal abortions, amending but not replacing the Offences Against the Person Law which criminalized abortion in 1861.

Oddly enough, abortion is still technically a criminal offense in the United Kingdom by virtue of parliaments failure to overturn the Victorian law of 1861. But the Abortion Act of 1967 provided legal exceptions under which women can receive an abortion with the authorization of two doctors. In practice, access to safe and legal abortions in the U.K. far exceeds that in the U.S.

Canada

If the U.K. is a clear case of parliamentary supremacy, and the U.S. one of judicial supremacy, Canada falls somewhere in between. It is also much more complicated.

While independence in the U.S. came about through revolution, Canadian independence came through a much more gradual process of negotiation and transfer of power from Britain. As a consequence, Canada inherited many foundational principles in British law, namely the principle of parliamentary sovereignty.

The power of the judiciary is therefore much more limited in Canada than in the United States. While the introduction of the Charter of Rights and Freedoms expanded the role of the judiciary to weigh in on clashes between individual rights and democratically approved legislation, the judiciary remains far more deferential to parliament in Canada. The case of abortion was no exception.

Until 1988, Section 251 of the Canadian Criminal Code held that a woman seeking an abortion must apply to an abortion committee which would allow an abortion only if the continuation of pregnancy would threaten her life or health. In hearing the case of Dr. Henry Morgentaler, a physician who performed an abortion in violation of Section 251, the Supreme Court overturned the Section on the grounds of a right to receive medical care. Notably, they did not rule on the basis of a right to abortion per se. The judiciary explicitly delegated the broader moral debate over abortion to parliament. Thus, rather than seeking (as Roe did) to terminate political dialogue over abortion, the Supreme Court of Canada in Morgentaler actually invited future political dialogue on the balancing of womens rights and any rights that parliament may find fetuses to hold.

The Canadian parliament never passed any legislation on abortion. It joined China as the only countries with no law governing abortion. In practice, the consequence was legal abortions at all stages of pregnancy.

Explaining the Divergence

The United States was the only one of the three countries that experienced a ruling on abortion seeking to finalize the issue. And yet, it is the country where divisions on the matter are strongest.

One could chalk this up to cultural differences; perhaps the religious right is more prominent in the U.S. than in Canada and the U.K. But there may also be an institutional explanation lurking beneath the complex histories of abortion rights in the three countries: The model of parliamentary supremacy in U.K. and Canada as opposed to the judicial supremacy of the United States seems to have been more effective in achieving stable abortion protections.

First, legislative change tends to result in compromise, while change through the courts is zero-sum. While Roe attempted to define winners and losers in a perpetual tug-of-war, the Abortion Act of 1967 in the U.K. struck a compromise: no formal legality, but far greater access to abortion. The unique capacity of legislatures for negotiation and compromise may lead more people to be satisfied with the end outcome.

Second, legislatures garner a certain procedural legitimacy that is thoroughly lacking in the courts. Perhaps the never-ending fierce debate over abortion in the U.S. can be explained not only by peoples dissatisfaction with the content and morality of Roe, but also the procedure underlying it: Americans may be frustrated with the undemocratic process through which abortion was legalized and thus view it as a fundamentally unjust outcome. This is consistent with Rosenbergs finding that, prior to 1973, there was little organized political opposition to abortion. Professor Jennifer Holland, a gender and sexuality historian, notes that Roe changed the direction of the pro-life movement. Now facing a definitive ruling on abortion that applies nationally, the movement was incentivized to became broader, better organized and more powerful. The fact that this movement was successful in doing so can be partially explained by a feeling of injustice among many in the face of an undemocratic ruling. In contrast, policies passed by majoritarian systems are more likely to gain enduring support because, even if there is disagreement, such policies have the democratic consent of the populations political representatives. This holds even when the outcome of democratic debate is no policy at all, as in the case of Canada.

Finally, regardless of where one stands on the issue of abortion, a system of parliamentary supremacy is more consistent with fundamental democratic principles and thus more morally legitimate. Governments yield immense coercive power over the lives of their citizens. They can take their property, force them to abide by restrictive laws and even hold the right to put them behind bars. In return, citizens deserve a reciprocal right to have input into the way they are governed. While antimajoritarian institutions may have an important role in liberal democracies, we should generally default to the decisions of democratic legislatures, especially on important moral issues that welcome rigorous public debate.

In the words of Abraham Lincoln, if government policies on vital issues are to be irrevocably fixed by the Supreme Courtthe people will have ceased to be their own rulers. Instead, we should welcome the power of the legislature to pass policies through a fair procedure that respects the democratic consent of citizens.

Image by Colin Lloyd licensed by Unsplash

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Does Judicial Supremacy Limit Social Progress? A Comparative Analysis of Abortion Rights in the US, Canada, and the UK - Harvard Political Review