It is not for the judiciary to legislate. The judiciary is in charge of implementing and adjudicating the laws. Laws are passed by the legislature (supposedly representing “We The People”).
In the US, the Supreme Court stepped in, and nine senior men with a mostly Caucasian appearance, 50 years ago, passed a judicial opinion masquerading as a sort of law enabling some sorts of abortions.
This is not how representative democracy with separation of three powers is supposed to work. This violation of basic constitutionality set a dangerous precedent where the Supreme Court displaced Congress to write sort-of-laws.
Since then, one can see the mood of replacing laws voted, or not voted, by legislators being created, or overruled by the judiciary in other domains, for example guns… With disastrous effect; it should not be SCOTUS which decides what sot of guns people can carry.
Far from promoting democracy, legislating through diktats of the judiciary is not just unconstitutional, it’s demeaning, infuriating, it makes people turn away from the law and it creates a general fascist mood, as We The People gets in the habits to have a committee of nine decided what is legal, or not… Instead of having more than 500 representatives decide.
Worldwide, more than 50 representative democracies have passed laws on abortions, using a standard vote in the Parliament. Those laws are remarkably similar. One could call them collectively, the abortion law: abortion at will, no question asked until 12 to 14 weeks, after that, medical opinions, and restrictions, steer abortions (including by considering the psychological state of the mother). The idea being that, once the fetus is viable, it’s not the private property of the carrier of said yet-to-be-born baby,
The US must do the same on a national level… And there will be no problem. In these 50+ democracies which passed the abortion law, abortion is not controversial (anymore).
One of the reasons that the Judiciary must not legislate is that it is very bad at it (having others things to do, and other inclinations).
In its abortion decision, of 1972, SCOTUS confused unanimously… life and privacy. Certainly the privacy of someone stops where the life of someone else starts. Just as the motion of one’s fist must stop where someone else’s nose starts…
Romans used to have the right to kill their child, no question asked. Now, thoughtful laws prevent them to do so. That’s progress. All culturally advanced countries have an abortion law (details do not vary much among US peers). Why can’t the US pass one? Too busy being tribal?
Patrice Ayme
Justice Samuel A. Alito Jr., writing for the six SCOTUS judges of the majority, said that a Mississipi law was OK, and that Roe and Planned Parenthood v. Casey, the 1992 decision that affirmed Roe’s core holding, should be overruled.
“Roe was egregiously wrong from the start,” Justice Alito wrote. “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.”
Tags: Abortion, Legislature, privacy v life, SCOTUS, separation of powers
Patrice Ayme's Thoughts 
June 25, 2022 at 7:22 am |
The partisan hysteria on this issue has been crazy. Thank you for being the voice of reason
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June 25, 2022 at 5:46 pm |
Here in France TV showed American women having abortions at 24 months, and the TV was outraged that these women would not be able to abort anymore… But in France that’s completely unlawful after 14 months!!!!!!
Talk about hypocrisy!!!!
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July 9, 2022 at 1:59 am |
Hey Patrice…I had a thought experiment that I thought you might enjoy expanding on….it’s the real-world example of “what happens when an unstoppable cannon hits an immovable post”: In essence we have two things that cannot both exist: the right to stand your ground against _any_ invader (in some states) and the fact that a fertilized egg is a separate living entity than the mother (in some states). So…given that the mother has the right to defend herself against an unwanted, threatening intruder, including applying lethal force, and given that the fertilized egg is considered a separate living being that is worthy of equal protection, which is it? does the mother _NOT_ have the right to defend herself (meaning that the right to stand your ground has some limits…)? Or does the mother have the right to apply lethal force in order to protect herself (meaning that she has the right to an abortion)….
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July 9, 2022 at 2:24 am |
Hi Yossi, thanks for the thought experiment…
As you put it, it’s a mystery, indeed… If one supposes that the developing human and the mother are equivalent on day one… But in truth that equivalence is attained around week 24, which happens to be, not coincidentally around viability with modern tech of the baby…
Indeed, in the real world, a blastocyte (first three weeks, until implantation in uterus) is viewed as human only by lunatics.
Neurons start to appear around day 42.
Until that time, the embryo is not even anything associated to neurology…
For comparison, the mosquito brain contains approximately 220,000 neurons. By week 15, the foetus creates as many neurons.. per minute. The spinal nerves needed to transmit touch and pain information to the thalamus have formed by 15 weeks’ gestation. Connections with the cortex are established by 24 weeks, so, at that point we have a human being which can suffer full-blown pain.
There is pretty much only one abortion law in advanced, respectable countries: allow abortion in the first 15 weeks or so, no question asked… After that, the intervention becomes heavier in several ways for all concerned, and doctor’s input is preferable before surgery. After the foetus has reached viability, the foetus should be viewed as human being, an unborn baby, and abortion should be outlawed, except if not performing it causes great hardship (2 doctors have to give their approval and assert that life and health were compromised).
The US Parliament, known as Congress, should present a viable abortion law similar to the one in say, France, and pass it, instead of presenting deformed, brainless and heartless laws made to be aborted right away, as Pelosi disingenuously did a few weeks ago (Pelosi was then excommunicated, de facto, in consequence…) What Pelosi pretended to try to pass enabled “live birth abortions”… a no-no for civilized people…
The idea of having SCOTUS legislate instead of Congress, is very dangerous for democracy, besides being completely unconstitutional. Such pseudo-laws have proliferated since Roe… If even Ireland can pass a (nearly) reasonable abortion law, why not the US?
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