When judges decide on abortion

The morning after the Supreme Court signaled that it would not oppose restrictive abortion laws, I was in a Houston hotel with a Texas-shaped pool.

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

But September’s no-decision ruling — part of what’s sometimes called the “shadow brief,” including brief orders and denials of certiorari in cases that don’t get hearings or comprehensive written decisions – made it clear that states could pass laws prohibiting abortion. and the court would not intervene. This meant that the Texas restrictions would go into effect, even if Roe v. Wade was still technically the law of the land.

I remember thinking that the Texas-shaped swimming pool in the background as I read the brief decision seemed awfully heavy, as if reality was going a bit too far to remind me that such decisions have an immediate effect on life people.

The way this change has come about – through a decision by appointed high court judges that circumvented the usual process of deciding a court case – has drawn the contours of a democratic divide that is manifesting in nations polarized around the world.

This week, two other abortion cases, argued in courtrooms more than 5,000 miles apart, highlight these vulnerabilities. On Tuesday in Warsaw, a Polish court found a women’s rights activist guilty of providing abortion pills – the first such conviction in Europe, and one that is expected to severely limit Poland’s already limited access to abortion.

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 starting point is, as always, with the reports of the New York Times. My colleague Monica Pronczuk reported on the Warsaw trial, where the defendant was convicted even though the woman who received the pills said she miscarried naturally. An earlier story, written with Katrin Bennhold about the risks for women following Poland’s abortion ban, provides important context on what is at stake.

It’s no coincidence that this latest battle is taking place in a courtroom. As I wrote in 2020, Poland’s Law and Justice Party tried unsuccessfully to pass new abortion restrictions in 2016, but the opposition blocked the bill in the Legislative Assembly. So the government turned to the country’s high court, which was crowded with party supporters. The court ruled that abortion in case of fetal abnormalities was unconstitutional.

Although it drew the biggest public outcry since the fall of communism, there was no way to translate that public anger into protection of abortion rights. Many women told me that as a result they had lost faith not only in the current government, but also in the legitimacy of the post-communist political system, which is deeply tied to 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 provide important background on the Texas case, in which plaintiffs 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 rendered his opinion. But the private trial in Texas could lead to a nationwide ban on a common form of abortion — even in Democratic-dominated states where such restrictions would never pass through the legislature.

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

“If Congress is deadlocked, that doesn’t mean there’s no policy change. It just means the places of this policy change,” Eric Schickler, a political scientist at the University of California at Berkeley who studies political change in the United States, told me a few months ago.

This shift puts the levers of politics in the hands of those with the resources and motivation to fight costly court battles, which tend to favor the wealthy and those with hard views, and discourage pragmatic compromise. In Poland, activists on both sides of the abortion issue, including the conservative Catholic group that sued in this week’s case and the convicted woman, have vowed to keep fighting.

Meanwhile, mainstream doctors and hospitals in Poland, fearful of being sued or sued, have become reluctant to even try to take advantage of exceptions to the abortion ban, with life-threatening consequences for some pregnant patients. A similar pattern is playing out in many US states now with abortion bans, as hospitals and pharmacies try to avoid liability, even if it endangers the patients in their care.

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

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

Their analysis was limited to the United States, whose institutions are in some respects unique. But Poland is not the only other polarized democracy to have experienced a similar pattern.

In Israel, the justice system has served as a drag 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. Today, the right-wing government seeks to impose strict limits on the judiciary, 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 been following growing concerns over the chief justice’s aggressive efforts to protect last year’s election, which have raised alarms that his growing power , exercised with little oversight, could also be a threat to Brazilian democracy.