When Judges Decide on Abortion

The morning after the Supreme Court signaled that it would not stand in the way of restrictive abortion laws, I was in a Houston hotel with a swimming pool in the shape of Texas.

It was September 2021, and the Supreme Court had just issued a late-night peremptory order declining to hear a challenge to Texas’s restrictive new abortion ban. The court’s opinion officially overturning Roe v. Wade would not come until nine months later.

But the September lack-of-decision decision — part of what’s sometimes called the “shadow docket,” comprising brief orders and denials of certiorari in cases that do not get hearings or full written decisions — made clear that states could pass laws that banned abortion and the court would not intervene. That meant that Texas’s restrictions would take effect, even though Roe v. Wade was still technically the law of the land.

I remember thinking that the Texas-shaped pool in the background as I read the brief decision seemed awfully heavy-handed, as if reality was going a little overboard to remind me that such decisions have an immediate effect on people’s lives.

The way that change had happened — through a decision by appointed justices of a high court that circumvented the usual process of adjudicating a legal case — traced the outline of a democratic fracture that is showing up in polarized nations around the world.

This week, two other abortion cases, argued in courtrooms more than 5,000 miles apart, bring those vulnerabilities into sharper relief. In Warsaw on Tuesday, a Polish court found a women’s rights activist guilty of providing abortion pills — the first conviction of that kind in Europe, and one that is expected to sharply limit the already scarce access to abortion in Poland.

And in Amarillo, Texas, a federal judge heard arguments on Wednesday about whether to issue a preliminary injunction that could impose a nationwide ban on access to mifepristone, a widely used abortion pill.

To learn more about the two cases, the place to start is, as always, with reporting from The New York Times. My colleague Monica Pronczuk reported on the trial from Warsaw, where the defendant was convicted even though the woman who received the pills has said that she miscarried naturally. An earlier story, written with Katrin Bennhold on the risks to women that have followed Poland’s abortion ban, gives important context about what is at stake.

It is not a coincidence that this latest battle is happening in a courtroom. As I wrote in 2020, Poland’s right-wing Law and Justice Party had tried and failed to pass new abortion restrictions in 2016, but the opposition blocked the bill in the legislature. So the government turned instead to the country’s high court, which was packed with party loyalists. The court ruled that abortion in cases of fetal anomalies was unconstitutional.

Although that drew the largest public protests since the fall of Communism, there was no way to translate that public anger into protection for abortion rights. Many women told me that as a result, they had lost faith not just in the current government, but also in the legitimacy of the post-Communist political system, which is deeply entwined with the Catholic Church.

The situation in the United States is, as the saying goes, not an echo but a rhyme. My colleagues Pam Belluck and Alison McCann offer important context on the Texas case, in which the plaintiffs have asked the judge to overturn the Food and Drug Administration’s approval of one of the most common types of abortion pills.

The judge has not yet delivered his opinion. But the private lawsuit in Texas could lead to a nationwide ban on a common form of abortion — even in Democrat-dominated states where such restrictions would never pass the legislature.

Battles over abortion rights in the United States have taken place in the courts since the days of Roe v. Wade, but they have become more common as political polarization has led to more deadlock in Congress. Lawsuits, rather than legislative wrangling, have become tools to change policy, circumventing the normal democratic process.

“If Congress is gridlocked, that doesn’t mean policy change doesn’t happen. It just means the venues of that policy change shift,” Eric Schickler, a political scientist at the University of California, Berkeley, who researches political change in the United States, told me a few months ago.

That shift places the levers of policy in the hands of those who have the resources and motivation to fight expensive court battles, which tends to privilege the wealthy and people with hard-line views, and to discourage pragmatic compromise. In Poland, activists on both sides of the abortion issue, including the conservative Catholic group that was a civil party to this week’s case and the woman convicted in it, have vowed to keep fighting.

Meanwhile, ordinary doctors and hospitals in Poland, fearing they might be sued or prosecuted, have become reluctant to even try to take advantage of the abortion ban’s exceptions, leading to deadly consequences for some pregnant patients. A similar pattern is now playing out in many U.S. states with abortion bans, as hospitals and pharmacies try to avoid liability, even if that endangers the patients under their care.

Putting judicial decisions outside the normal mechanisms of democratic accountability is supposed to be a feature of systems like the United States, where the judicial branch is intended as a check on elected officials’ power. But if too much power shifts to the judiciary, then it could potentially usurp democratic functions, and eventually cast a shadow on the system’s legitimacy.

“The American system of checks and balances, with its unusual dispersal of political authority, has long generated formidable barriers against democratic backsliding,” Schickler wrote in an article with a Berkeley colleague, Paul Pierson. “Yet many of the stabilizing forces that traditionally were linked to these institutions seem much weaker today. In fact, in some cases, these arrangements now introduce new polarizing elements.”

Their analysis was limited to the United States, whose institutions are in some ways unique. But Poland is not the only other polarized democracy that has seen a similar pattern play out.

In Israel, the judiciary served as a brake on the agenda of far-right and ultra-Orthodox parties for many years, leading many of its critics to see it as an ally of liberal politicians. Now the right-wing government is seeking to place sharp limits on judicial power, which many believe would disastrously weaken Israeli democracy, as my colleagues Patrick Kingsley and Ronen Bergman have reported.

And in Brazil, Jack Nicas, the Times bureau chief there, has followed the growing concerns over the chief justice’s aggressive efforts to protect last year’s election, which have raised alarm that his growing power, wielded with little oversight, could also be a threat to Brazilian democracy.

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