The way in which judges can grant rights – or remove them – has been glaringly illuminated by the leaked draft opinion of the United States Supreme Court that strikes down Roe v Wade.
A spokesperson for the Abortion Law Reform Association of New Zealand said the ruling was a stark reminder that women’s rights – and reproductive rights more broadly – were “vulnerable to erosion”.
True. Or, on another day in another court, those rights might be expanded.
Roe v Wade had been a landmark decision in 1973, when the US Supreme Court ruled that the Constitution of the United States protects a pregnant woman’s liberty to choose to have an abortion without excessive government restriction.
Critics of the ruling also contended it was an example of judicial activism
Hayden Thorne, an LLB from Victoria University of Wellington where he is a PhD candidate in the history programme specialising in the United States Supreme Court, brings us up to date in an article for Newsroom
A week ago, , the Politico website in the US had broken the story that many legal commentators had been anticipating – the United States Supreme Court was planning to release a decision overturning Roe v. Wade (1973), thereby ending constitutional protection for the right to legal abortion.
His article draws attention to the numbers game:
Politico has also accessed a copy of Justice Samuel Alito’s draft opinion for the majority – Alito, joined by Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, will vote to uphold a Mississippi abortion regulation statute and thereby undo 50 years of American legal development.
Politico report that Justices Sonia Sotomayor, Elena Kagan and Stephen Breyer are working on dissenting opinions, while there is no clarity over where Chief Justice John Roberts will fall.
Plainly, some judges disagree and the weight of numbers becomes important.
Thorne goes on to explain:
Alito’s draft opinion holds that “Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision”. He continues that “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.”
Thorne thereby has drawn attention to a matter of fact – and of concern.
Roe v Wade is not being overturned because the constitution of the US has changed.
It is being overturned because different judges have considered how the constitution of the US should be applied.
Just as he constitution of the US does not mention abortion, the Treaty of Waitangi does not mention “partnership” or “co-governance” and it provides no guidance for its interpreters by including a set of treaty principles.
But judges are dab hands at telling us what the treaty really means and at helping to build a set of principles to influence public attitudes and policy.
The idea of a “partnership” binding Maori and the government, for example, has been traced back to a 1987 Court of Appeal decision stating that the Treaty established a relationship ‘akin to a partnership’.
Professor Elizabeth Rata has written that this came to justify non-public negotiations between the tribal elite and government ministers when former Deputy PM Geoffrey Palmer met a tribal leader, Sir Hepi Te Heuheu, in 2004.
And partnership language quickly became an effective strategy in institutionalising the corporate tribes’ economic and political interests.
Yet as recently as 1990, former Prime Minister David Lange was saying:
“The treaty cannot be any kind of founding document, as it is sometimes said to be. It does not resolve the question of sovereignty, if only because one version of it claims one form of sovereignty and the other version claims the opposite.
“The court of appeal once, absurdly, described it as a partnership between races, but it obviously is not. The signatories are, on one side, a distinctive group of people, and on the other, a government which established itself in New Zealand and whose successors represent all of us, whether we are descendants of the signatories or not. The treaty cannot even resolve the argument among Maori themselves in which one side maintains that that you’re a Maori if you identify as such, and the other claims that it’s your links to traditional forms of association which define you as Maori.”
The meaning of other parts of the treaty are similarly open to interpretation by judicial activists who profoundly influence public opinion and the decisions of an elected Parliament.
And Roe v Wade demonstrates that one bunch of judges can determine something one day, based on what they argue a document allows or disallows, whereas another bunch of judges with different ideological leanings or different values shaped by the time in which they live can rule to the contrary several years later.