What does the US Supreme Court’s decision in Dobbs tell us about the virtues of Australia’s approach to protecting fundamental rights?
Theunis Roux
04.07.2022
Australia is one of the few liberal democracies today without a judicially enforced bill of rights in its national constitution. Instead, the protection of rights is largely left to the democratic process. What does the US Supreme Court’s recent decision on the right to abortion in Dobbs v Jackson Women’s Health Organization 597 US ___ (2022) tell us about the virtues of this approach?
The decision in Dobbs
In Dobbs, a 6:3 majority of the US Supreme Court upheld a Mississippi law prohibiting the termination of a pregnancy after 15 weeks’ gestation except on limited medical grounds. To arrive at this decision, five members of the 6-judge majority (Alito J, who wrote the Opinion of the Court, and Thomas, Kavanaugh, Gorsuch and Barrett JJ, but excluding Roberts CJ) overruled Roe v Wade 410 US 113 (1973) (Roe), the Court’s famous decision finding that the US Constitution contains an implied right to abortion. (Chief Justice Roberts held that the issue presented to the Court did not justify the overruling of Roe because it was possible to resolve the dispute on a more limited basis.)
As with all constitutional rights, the right vindicated in Roe was not absolute. Rather, the Court devised a trimester-based framework that gave states limited powers to regulate abortion before foetal ‘viability’ (today, around 24 weeks), but greater powers after that.
The Court’s decision in Planned Parenthood of Southeastern Pa. v Casey 505 US 833 (1992) (Casey), handed down 19 years later, sustained this qualified constitutional right to abortion, but changed the test for its violation to a vaguer ‘undue burden’ standard. The new standard, while recognising women’s autonomy, ‘created opportunities for opponents of abortion to enact restrictions on abortion that Roe itself never sanctioned’.
In Dobbs, the US Supreme Court overruled both Roe and Casey, holding that the former case had been wrongly decided and that Casey, given that it simply modified the standard for violation of the right without fortifying the constitutional foundation for it, should be nullified as well.
The main reason the majority in Dobbs gave for this decision was that the Roe Court had improperly applied the standard for identifying implied rights, and that the Casey Court had not cured this defect. Indeed, if anything, in focusing most of its attention on amending the test, the Court in Casey had provided an even flimsier basis for the constitutional right to abortion.
In the absence of an express right, the Dobbs majority noted, the Roe Court had derived the right to abortion from the implied right to privacy in the First, Fourth, Fifth, Ninth, and Fourteenth Amendments to the US Constitution. Casey, for its part, had relied exclusively on the Due Process Clause in the Fourteenth Amendment (‘no person shall … be deprived of life, liberty, or property, without due process of law’). In both cases, the relevant standard had not been properly applied.
In the case of the pivotal Due Process Clause, the Dobbs majority held that the standard for deriving implied rights is whether the right in question could be said to be ‘deeply rooted in [America’s] history and tradition’ and whether it is ‘essential to [the] Nation’s “scheme of ordered liberty”’ (Opinion of the Court, 12). Since the right to abortion (according to the majority) was plainly not such a ‘deeply rooted’ right, its recognition in Roe had been erroneous. Rather than a legitimate act of constitutional interpretation, that decision, as claimed by Justice Byron White in dissent at the time, had been an ‘exercise of raw judicial power’ (Opinion of the Court, 3). In failing to address that problem, the Casey Court had simply compounded the error.
The three dissenting justices in Dobbs (Breyer, Sotomayor and Kagan JJ) furiously disputed this treatment of the Court’s precedents. The basis for Roe, they contended, had been a series of carefully developed doctrines that had started with the recognition of an implied right to privacy in cases like Griswold v Connecticut 381 US 479 (1965) (on access to contraception) and Lawrence v Texas 539 US 558 (2003) (on the criminalisation of consensual gay sex). In Roe, the Court had legitimately extended this line of cases to recognise a woman’s right, at least until foetal viability, to make the deeply personal decision whether to terminate a pregnancy.
While not textually present in the Constitution, the minority continued, this right was part of a closely interconnected web of rights relating to bodily integrity and family life that had a solid foundation in judge-made constitutional law. As such, it represented the best contemporary understanding of what the US Constitution’s commitment to liberty in the Fourteenth Amendment means.
From the above summary, it is apparent that the two opposing approaches in Dobbs stem not just from differing judicial ideologies, but also from rival theories of constitutional interpretation – contrasting understandings, that is, of how legitimately to go about the business of applying a morally complex yet linguistically underdetermined document like the US Constitution. Each theory has a certain purchase in the US Supreme Court’s case law, and each is now associated with a particular side of the partisan divide in US politics and on the Court itself.
This partisan divide has long been entrenched and thus, in one sense, the outcome in Dobbs was entirely predictable. Founded, as the outcome was, not on minor differences in approach, but on the wholesale substitution of one interpretive theory by another, the Opinion of the Court can be attributed to the Republican Party’s success in appointing a majority of the justices. The power to do that, in turn, was a function of the Faustian pact that the GOP made (and is still making) with Donald Trump’s nativist populism.
The Australian approach
So much for Dobbs. Turning to Australia, the closest analogue to the American ‘constitutional interpretation wars’ is the controversy surrounding the High Court’s decisions in Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 and Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 (ACTV). In those two cases, the Court derived an implied freedom of political communication by a process of reasoning not too dissimilar from the one used by the US Supreme Court in Roe. Just as the Supreme Court did in that case, the High Court founded the implied freedom on a doctrine (representative and responsible government) that was itself inferred from the text and structure of the Constitution.
In the Australian case, however, the controversy over these two decisions was of shorter duration and not as intense. For one, the implied freedom, important as it is, does not affect a morally complex personal decision that a sizeable proportion of the population may have to make at some point in their life. The stakes were different in that sense. In addition, the opposing interpretive theories at issue in Nationwide News v Wills and ACTV did not stem quite as obviously from rival ideological understandings of the Australian Constitution, but rather from rival judicial philosophies. The public debate over these decisions was consequently not as fraught or as long-lasting.
As things stand today, Nationwide News v Wills and ACTV are relatively firmly embedded in Australian constitutional law, with only the occasional dissenting judicial voice claiming that the implied freedom of political communication has an illegitimate constitutional foundation. Partly this has to do with the fit that has been found to exist between the implied freedom and the best understanding of the underlying purposes of the Australian Constitution. Partly, also, it has to do with the fact that the High Court has consistently refused to go beyond the implied freedom of political communication (with the exception of the closely related implied right to vote) to recognise a more fulsome implied bill of rights.
This disinclination to go further means that Australia’s approach to the regulation of abortion has long been completely different from that of the US. With no constitutional right to abortion recognised at the federal level, each state and territory has been free to develop its own regulatory framework. While this means that there are some differences depending on the state or territory in which you are living, there is nothing in Australia like the great divide that separates ‘red’ from ‘blue’ states in the US. The differences that there are relate to such issues as whether pro-life doctors are required to refer patients for abortion and whether pro-life advocates are permitted to come within close proximity of an abortion clinic.
Against this background, one way of understanding the Dobbs decision is to see it as having brought the US approach more into line with the Australian. As in Australia, each of the 50 states in the US will now be able to regulate abortion according to the preferences of the political party that controls the state legislature. The difference, however, is that in the US, Republican Party-controlled states are now moving towards much tighter regulation of abortion to the point of making it both legally and practically inaccessible. Indeed, many Republican states had so-called ‘trigger laws’ in place to ensure that any decision by the Supreme Court to overrule Roe would automatically lead to new restrictions on abortion. Unlike Australia, this means that a woman’s chances of having a safe, legal abortion in the US will now be contingent on the state she is living in.
Implications for the debate over judicial rights enforcement
What does all of this teach us about the virtues of the Australian approach to protecting fundamental rights and the right to abortion in particular?
Both opponents and proponents of the introduction of a judicially enforced bill of rights at the federal level in Australia might be able to find support for their views in what has happened. For opponents, the Dobbs decision is an ‘I told you so’ moment that appears to conclusively demonstrate the folly of giving courts the power to decide fundamental rights questions of this kind. Failure to respect the appropriate limits of the judicial role is not just bad for democracy, they may now plausibly argue, it is also bad for women since it leads to the kind of devastating, judge-led policy reversal that we have just witnessed.
For people who hold this view, but who are also ardently in favour of women’s right to choose, this ‘I told you so’ moment is bittersweet. That is because it comes at the cost of being associated, on the appropriate role of judicial review point, with a group of conservative justices with whom they likely disagree on the underlying policy issue. Not just that, but the majority judgment in Dobbs actively celebrates the pro-democratic ethos of the oppositional view in claiming that its approach returns the ‘authority’ to regulate abortion ‘to the people and their elected representatives’ (Opinion of the Court, 79).
There is some hypocrisy in the majority’s stance in this respect, of course. In a case decided one day before Dobbs, New York State Rifle and Pistol Association, the same group of conservative justices (this time including Roberts CJ on the merits as well as the result) showed themselves to be far less concerned about the integrity of the democratic process when it comes to regulating the right to carry a concealed gun in public.
Adding to the sense of double standards, commitment to the democratic process is a principle that in many Republican-controlled states today is respected in the breach given their long histories of partisan gerrymandering and voter disenfranchisement. The glow of the Dobbs majority’s democratic-credentials-burnishing, in other words, is somewhat dulled by the recognition that, in the case of many Republican-controlled states, the regulation of abortion is only debatably being returned to ‘the people’ for decision.
Beyond pointing to the hypocrisy of the Dobbs majority’s position, opponents of judicially enforced rights, like Jeremy Waldron and Mark Tushnet, can claim that there is nothing preventing ordinary Americans from interpreting the US Constitution to recognise the same interconnected web of rights that the liberal majority on the US Supreme Court has done. In the end, this process of popular constitutional interpretation may be a more secure way to protect constitutional rights than the judicial version, given the latter’s liability to partisan retrenchment.
For proponents of a judicially enforced bill of rights, the work of reconciling Dobbs with their views must proceed along a different route. The starting point here would be to argue that the reason why the Roe decision was so controversial is that the majority in that case, absent a clear constitutional right, had to stretch ordinary canons of constitutional interpretation in ways that exposed the Court to charges of judicial over-reach. That is not necessarily always the case, however, when judges enforce a constitutional right to abortion.
In many modern constitutions, where sufficient consensus in favour of the right to abortion existed at the time of adoption, much more express language has been included. In South Africa, for example, section 12(2)(a) of the 1996 Constitution states that, ‘Everyone has the right to bodily and psychological integrity, which includes the right ... to make decisions concerning reproduction’. With an express constitutional right like that, the judiciary’s enforcement of the right to abortion is not nearly as controversial as it is in the US.
This does not mean that proponents of a judicially enforced bill of rights simply need to insist on adopting as comprehensive a bill of rights as possible. There are downsides to over-specification as much as there are to under-specification.
In countries with more obviously progressive constitutions than the American, the controversy over judicial review is less about the legitimacy of particular judicial decisions and more about whether the entire Constitution, given the circumstances in which it was adopted, is legitimate. In South Africa and India, for example, the main controversy today concerns, not the role of the judiciary in enforcing implied constitutional rights, but the wisdom of these countries’ constitutional assemblies in giving the judiciary the power to enforce a suite of all too clearly expressed constitutional rights – rights whose exquisitely detailed commitment to individual liberty betrays their origins in an allegedly alien Western liberal tradition.
Interestingly, there were some elements of this ‘legitimacy of the founding moment’ critique in the US Supreme Court’s decision in Dobbs, albeit coming from the opposite direction and pressed in service of a diametrically opposed conclusion. The minority judgment in Dobbs thus makes some cutting remarks about the majority’s reference to a constitutional history in which women until recently have not been permitted to participate (Dissenting Opinion, 14). It then uses this argument to bolster its claim that the US Constitution must be seen as an evolving project – a living constitution – that is constantly being re-legitimated through the justices’ commitment to enforcing the best contemporary understanding of core constitutional commitments.
The problem for the Dobbs minority, of course, is that the right to abortion in the US has arguably not yet achieved the degree of overwhelming support that the minority’s treatment of it as an aspect of the best contemporary understanding of liberty presupposes. According to a recent Gallup poll, 39% of Americans consider themselves to be ‘pro-life’, and governments in 26 of the 50 states (Opinion of the Court, 4) support restricting or prohibiting abortion before viability. These figures mean that the minority’s approach in Dobbs risks coming across as the attempted imposition of the national majority view on abortion on a substantial minority of Americans living in a majority of the states. That was Roe’s problem as well, and one of the reasons the decision proved divisive.
Conclusion
How, then, should the regulation of abortion be settled? Is it the sort of issue that can properly be determined by majority vote? Or is it the sort of issue that constitutions should explicitly, or by creative judicial interpretation, put beyond ordinary democratic politics?
This is a complex question that cannot be fully answered here. What the above analysis points to, however, is the virtue of an institutional arrangement that allows the regulation of abortion to be settled both securely and legitimately. Countries that have managed this issue well, like Ireland in 2018, have done so by setting up a process for respectful democratic discussion before putting the question to a vote. The virtue of this approach is that it both reduces the likelihood of major policy swings down the track and enhances the legitimacy of the settlement.
The judiciary’s role in processes of this kind is to enforce the fairness and inclusiveness of the democratic discussion that is held. In the US, the politics of abortion has become so divisive that the country is probably past the point of being able to have a respectful debate. But this does not mean that the Dobbs majority can simply wash its hands of any responsibility for the policy decision that they have pushed back to the states. To counter the charge of hypocrisy in relation to its concern for democracy, the majority needs to back up its decision by more aggressively enforcing the fairness and inclusiveness of state elections. That means finally beginning to address the Republican Party’s anti-democratic practices in the states it controls.
In Australia, this analysis implies that the decisions in Nationwide News v Wills and ACTV, though following a similar reasoning process to that in Roe, are more readily justifiable as interventions that were ultimately about enhancing the judiciary’s role in ensuring the proper operation of the democratic system. Australia’s constitutional-design choice in leaving the enforcement of fundamental rights mostly to the democratic process is defensible, on this view, provided it is supplemented by giving the judiciary a clear role in protecting democratic rights.
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Theunis Roux is Professor and Head of the School of Global and Public Law, UNSW Faculty of Law & Justice, and Co-Director of the Constitutionalism in the Global South Project within the Gilbert + Tobin Centre of Public Law.
Suggested citation: Theunis Roux, ‘What does the US Supreme Court’s decision in Dobbs tell us about the virtues of Australia’s approach to protecting fundamental rights?’ on AUSPUBLAW (4 July 2022) <https://www.auspublaw.org/blog/2022/07/what-does-the-us-supreme-courts-decision-in-dobbs-tell-us-about-the-virtues-of-australias-approach-to-protecting-fundamental-rights>