The Supreme Court’s Decision Could Have Ramifications in Australia

July 12, 2022 Updated: July 13, 2022

Commentary

As expected, since the leaking of Associate Justice Samuel Alito’s draft opinion in early May, the American Supreme Court has now overturned the nearly 50-year precedent of Roe v Wade and Planned Parenthood of Southeastern Pa. v Casey.

Since Roe v Wade was decided in 1973, America has been fiercely divided into pro-life and pro-choice camps, the opinions of which did not leave much wiggle room for compromise or accommodation. But the Supreme Court has now cut the Gordian knot, ruling that the “liberty” provision in the Constitution does not protect a right to privacy, which had been relied upon in Roe v Wade to find a constitutional right to abortion.

The 14th Amendment stipulates that “No state shall … 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.”

The case that enabled Roe v Wade to be overturned, Dobbs v Jackson Women’s Health Organization, involved a constitutional challenge to the Mississippi Gestational Age Act 2018, which prohibited abortion of human foetuses beginning at 15 weeks.

The Ruling

Alito said that “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

Thus, Alito’s decision does not outlaw the abortion procedure but merely finds that the Constitution does not protect a right to abortion and that, therefore, this issue comes within the legislative competence of the States’ legislatures. For him, the view that even a wrong decision that has been entrenched as a precedent should be slavishly followed is an untenable proposition.

Epoch Times Photo
Pro-life activists demonstrate outside the Supreme Court of the United States in Washington on June 13, 2022. (Evelyn Hockstein/Reuters)

Alito Jnr’s confident assertion that Roe v Wade, rather than settling the vexed issue of abortion, is actually responsible for deepening divisions and enflaming debate in the United States is prophetically accurate. Indeed, his prediction of “enflamed debate and deepened division” has certainly eventuated since the judgment was released on June 24.

Aggressive Response

For example, following the decision, the pro-life office of Mountain Area Pregnancy Services in Asheville, North Carolina, was vandalised by hard-line pro-abortion vandals. Windows were smashed, and the building was graffitied with red paint. But menacingly, the activists also left behind a disturbing message: “If abortions aren’t safe, neither are you.”

Kristen Waggoner of the Alliance Defending Freedom, reporting on this incident, reveals that, since the leaking of the draft opinion, there have been near “50 acts of vandalism and violence aimed at pro-life pregnancy centres, churches, and individuals” in the last month.

The response by sections of the pro-choice lobby to the Supreme Court’s decision is an unfortunate and worrying development because gratuitous violence and intimidation have replaced rational debate, expected in a mature democracy. The situation is deemed so serious that the residences of the justices of the Supreme Court are protected by police, and a “non-scalable” fence now surrounds the imposing Supreme Court, which, until recently, was freely accessible to the public.

The violence reveals that rational debate is not likely to bridge the divide between the pro-choice and pro-life factions. As the pro-life lobby celebrates the momentous decision, its detractors avail themselves of violent means to protest the Court’s judgment.

So, the endless demonstrations against the Supreme Court and its concomitant violence indicate that the pro-choice lobby is unwilling to use its right to free speech to constructively analyse and criticise the judgment without resorting to violence. The judgement has been simply dismissed on the ground that one cannot trust the judgment of the people’s representatives! America is divided as never before.

Longmont arson
A message written on the wall of a pro-choice pregnancy resource center that was set on fire in Longmont, Colorado, on June 25, 2022. (Longmont Police Department)

Will Australia Also Be Divided by the Abortion Debate?

It was in this context, Australian writer Phillip Adams recently wrote in The Australian newspaper that the United States was “a failed state.” He could well have written this about his own country because Australia’s own societal norms around abortion will also be shaken by the judgment of the American Supreme Court.

This is because the American abortion debate is likely to sharply divide the allegiances of Australians.

Although there is no violence on the scale experienced in the United States, the ready availability of abortion services is dividing Australia, with woke legislators discriminating against those who are pro-life.

An example is the case of Dr. Mark Hobart, who was approached to terminate a 19-week pregnancy on sex selection grounds by an Indian couple who wanted a boy, not a girl.

Under the Abortion Law Reform Act 2008 (Vic), Hobart was obliged to refer the couple to a doctor willing to perform the procedure after he refused on religious grounds, and he was subsequently accused of medical malpractice.

The judgment of the American Supreme Court has generated an intense, ferocious reaction in the United States. Using the language of Associate Justice Clarence Thomas’s concurring opinion, although almost 50 years have passed since Roe v Wade, “abortion advocates still cannot coherently articulate the right (or rights) at stake” and fail to comprehend that the “right to abortion is ultimately a policy goal in a desperate search of a constitutional justification.”

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.

Gabriël A. Moens AM is an emeritus professor of law at the University of Queensland, and served as pro vice-chancellor and dean at Murdoch University. In 2003, Moens was awarded the Australian Centenary Medal by the prime minister for services to education. He has taught extensively across Australia, Asia, Europe, and the United States. Moens has recently published two novels “A Twisted Choice” (2020) and “The Coincidence” (2021).