Jen Gerson: Lessons from Alito

What can Canadians learn about the imminent fall of Roe v. Wade?

Photo by Gayatri Malhotra on Unsplash

As this has been a difficult week for women, let me start by stating my bias upfront. I am unapologetically pro-choice. In the contest between the bodily autonomy of an adult or near-adult woman vs. the right of a fetus to exist, the woman’s will wins. I'm not going to pretend that there is no legitimate debate to be had about limits or restrictions on abortion, because those are questions that are inherently fraught by moral and philosophical arguments about concepts like personhood that will never be settled. But I'm always going to prioritize the rights of the being who definitely is a person in favour of the one that only might be. 

Now that I have those bona fides out of the way, let's dig into the leaked draft of the United States Supreme Court ruling that would hypothetically overturn Roe v. Wade. A few caveats are necessary, of course: the leak, which caused chaos in American politics this week, is just a draft, and one or more justices could still conceivably change his or her vote and preserve Roe. If Roe is overturned, the legal status of abortion will devolve to the states; in some, the procedure will remain legal, while in others it will be effectively criminalized. Lastly, the leak of the draft itself is an astonishing, near-unprecedented breach of trust that undermines the court. 

Because we in Canada cannot help but import the latest culture war skirmish into our own national discourse regardless of our manifold cultural, political and legal differences, of course — of course — abortion was the only thing worth talking about this week. The left will use the leak to take potshots at the right, claiming that the fall of Roe will inject some kind of totemic energy into the pro-life movement in Canada, thus requiring constant vigilance against the Conservatives. Meanwhile, Conservatives will accuse Liberals of scaremongering in order to drum up support, fundraising and votes. 

Both will have a point, but both points will be self serving and I'm not interested in litigating either. Bluntly, "localizing" the U.S. Supreme Court by analyzing its effects on a longstanding Canadian bunfight is lazy and boring. 

Written for the majority by U.S. Justice Samuel Alito, the ruling itself is interesting enough. Notably, it represents a serious strategic loss for pro-choice forces in America. It's worthwhile to take a moment to understand exactly what that loss is and how it came about. If we do that, the actual analogies to Canadian culture and law will become apparent. 

The easy path is simply to blame the Republicans and Donald Trump in particular for putting so many anti-choice Justices on the court — but that assumes that the strategic blunder lies fundamentally in the Democrats' inability to win political power. The problem is deeper than that. Roe's doom was 50 years in the making.

Let's start with the ruling itself. 

I'm going to be honest, here: Despite my personal views on abortion, Alito makes a compelling case that Roe v. Wade was always a weak ruling. Part of the reason why control over the Supreme Court has grown so impossibly contentious is because there is no way Roe could have survived as long as it did unless the majority remained ideologically committed to upholding it. 

Passed in 1973, Roe stretched several amendments to establish a constitutional right to abortion that didn't previously exist and wasn’t specifically enumerated. 

"Wielding nothing but 'raw judicial power' the Court usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people," Alito wrote. "The Court short-circuited the democratic process by closing it to the large number of Americans who dissented in any respect from Roe." 

Alito noted that Roe didn't read like a judicial decision, but rather as a piece of legislation. It took power out of the hands of actual lawmakers to make the law and instead put that authority into the purview of the law interpreters. 

Now, I have other problems with Alito's reasoning (as a Canadian pundit with no legal training no one ought to care about my personal objections). However, I have to concede that on this fundamental argument, Alito makes a fair point. 

Regardless of how you feel about Roe, it would be an error for pro-choice forces and the left more generally to fail to acknowledge that they set themselves up for this setback. 

America could have explicitly written the right to obtain an abortion into its constitution. It didn't, of course, because changing the Constitution is notoriously difficult. In liberal democracies facing mounting political and partisan gridlock it's become difficult to make sweeping social changes through political avenues. So the left (and sometimes the right) has chosen instead to make an end run around this difficult and messy process via the court system — essentially legislating from the bench — for the purpose of obtaining their preferred set of policy objectives. 

At the same time, we've witnessed a broadly more liberal legal profession that has advanced judges and justices that have opted for a looser understanding of written constitutions. Under this framework, these foundational documents are meant to evolve alongside the mores of the societies that adhere to them. Therefore, a constitution can now be stretched beyond the plain meaning of its words. Wham bam, you get Roe v. Wade: and a right to privacy evolves into a constitutional right to obtain an abortion.

Herein lieth the problem. 

This reduces democracy to a bit of sham theatre that produces governments that pretend to wield the power that’s actually held by a functioning technocracy. In order to believe that this approach to governance is superior, the side that advances it — the left, in this case — has to be unshakeably convinced of its own fundamental correctness. Only then would said side choose to extricate policy making from the vagaries of the political process and entrust them in the technocratic classes — the courts, scientists, committees of experts, and other gatekeepers of elite consensus making. If you know, know with absolute certainty, that you are correct about everything, then you will always have faith that the technocrats and experts will always side with you. The stupid plebes can whine at the gates all they want: Your positions will be advanced. Your side will always win, and you will always find yourselves lockstep on the right side of history. 

Until you lose. 

Because, as it turns out, power doesn't work like that. 

People go where the power is, not where it ought to be. If you invest authority in a technocracy, that is where those who seek power will go. 

And so we have seen.  

Recognizing the growing legislative power of the Supreme Court, the Federalist Society formed in 1982 with the explicit goal of training and advancing lawyers who adhered to a more traditional view of the U.S. Constitution. For decades, this group created strong ties with the political classes, serving as a de facto sub-contractor to help U.S. conservatives narrow down their Supreme Court picks. The Society found its watershed moment under Donald Trump, certainly. Of the nine members of the Supreme Court, six are current or former Federalist Society members. But the society would have succeeded eventually under a future Republican president, if not him. 

It might have taken another five years, or 10, or 15; but it's naïve to assume that only liberal judges were ever going to hit the bench. Sooner or later, enough conservatives would have been appointed to the court: a challenge to Roe would be presented, and a decision very much like Alito's was going to be written. 

Even if you agree with the outcomes created by Roe v. Wade, it’s hard to read Alito’s opinion and conclude that it wasn’t a flawed ruling. Therefore, those outcomes were always built on a castle of sand, vulnerable to the next sea change. The only way to keep Roe intact was to either block conservatives from holding a majority outright or constrain them with arguments about precedents, norms and societal expectations — and that was never going to work forever. 

One of the oldest and most obvious tenets of honourable conduct in partisan politics: never grant to yourselves powers you would hate to see in the hands of your opponents. Process matters. Solid legal reasoning and institutional norms are more important than short-term political gain because no one side stays at the top forever and the pursuit of power is capricious and relentless.  

This is where we really find the analogy to Canadian abortion rights. 

Since the 1988 Morgentaler ruling, we have had no law on abortion. This does not mean that we have no restrictions: ethical guidelines on elective abortion are not dictated by legislatures, by rather pronounced by the Canadian Medical Association. We've outsourced our abortion restrictions to a different technocratic elite. 

For the most part, Canadians are fine with that status quo, or, at the very least, content enough with it to want to avoid the issue. This is actually what protects abortion access in Canada, such as it is — too many people here simply don't want to argue about it, thus ensuring the issue is a political dead letter for the time being. 

So if I were an ardent pro-life activist in this country, I wouldn't waste my time electing pro-life backbenchers: Rather, I would embark on a Federalist-like project to take over the CMA. And if pro-lifers did such a thing, to whom would us pro-choicers appeal? What would our avenue of attack be? Would we then clamour for some legislative solution, forwarded by politicians we could elect and un-elect at our will? 

The last lesson we can learn from Alito is that you can't skip the messy act of persuasion in a liberal democracy. It is ultimately ineffective to push social change by delegating the power to govern to a technocratic elite. 

There's every chance that Roe v. Wade, in its attempts to create a constitutional right to abortion, actually forestalled a more sustainable political outcome that would now be enshrined in various U.S. state laws. 

As Alito put it: "the Court cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling the people to move on." 

You can disagree with the ruling. You can be as pro-choice as they come. But you can’t really disagree with Alito there. Without genuine societal consensus, politics is reduced to the crass pursuit of institutional power, and any gains on contentious moral issues will be illusory and fragile. Because the other side will win some battles, too. And then what?

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