Opinion: Roe’s passage of abortion rights galvanized the pro-life movement, which set its sights on capturing state legislatures, the very legislatures that now tell American women what they can do with their bodies.
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The angry protests south—and north—of the Canada-US border reveal one thing: Canadians and Americans alike expect too much from the courts and too little from their elected representatives.
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The protests were precipitated by the United States Supreme Court last week. decision Dobbs v. Jackson Women’s Health Organizationwhich ended the reproductive freedom that women had enjoyed for half a century since Roe v. Wade.
The anger with the court is understandable, given the rare rescission of a constitutional right and the misleading nature of the newly appointed testimony before the Senate Judiciary Committee. One by one, each affirmed their solemn commitment to the precedent, only to later reveal that, what do you know, the Roe precedent isn’t as sacrosanct to them as they’d led everyone to believe.
That said, the court, as some critics have alleged, did not tell women what they can and cannot do with their bodies. The courts do not have that power; all they can do is tell legislators what they can and cannot do: what the Constitution allows and what it prohibits.
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Thus, the Dobbs decision told state legislatures that they can pass laws restricting women’s control over their bodies, but it was necessary for those legislatures to do so. As a result, anger at the court seems a bit misplaced, since legislatures — and legislators — should bear the brunt of pro-choice activists’ outrage.
In fact, it was Roe v. Wade which raised many people’s expectations of the courts and, at the same time, lowered their expectations of their elected representatives. Before Roe, a strong pro-choice movement focused its attention on legislatures rather than just the courts, but that movement all but evaporated after the decision was published.
In many states, Democrats didn’t—and still don’t—even bother to run for office, allowing Republicans to run for statewide office unopposed. Obviously, there is no need to fight a war that you have already won.
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On the other hand, Roe’s sweeping passage of abortion rights galvanized the pro-life movement, which set its sights on capturing state legislatures, the very legislatures that now tell American women what they can do with their bodies.
It was none other than the late US Supreme Court Justice Ruth Bader Ginsburg who made this point in a speech at New York University School of Law in 1993, several months before his confirmation hearing for a high court position.
Although Ginsburg took the unprecedented step of explicitly expressing her support for abortion rights at her hearing, her critique of Roe v. Wade generated some uncertainty about his exact position.
However, he repeated that criticism in a speech 20 years later at the University of Chicago, stating that Roe “appeared to have stalled the momentum for change” and that he “would have preferred abortion rights to be secured more gradually, in a process that included state legislatures and the courts.”
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In fact, if pro-choice activists had continued to court legislatures, Dobbs’ decision might have had a very different impact. In Dobbs, the court rejected Roe’s conclusion that the US Constitution includes an unenumerated right to privacy, and thus held that states may enact laws prohibiting abortion.
Many predominantly Republican states have already implemented a ban. But abortion remains legal in deep red Montana, specifically because the state Constitution explicitly protects the right to privacy. That right is now under attack, but the Montana case demonstrates that rights guaranteed through state legislatures can withstand even powerful Supreme Court decisions.
That should be a lesson not just for Americans, but for Canadians as well. The courts play an important role in ensuring that laws do not violate the Constitution, but the Constitution, like any other statute, is an act of the legislature.
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If we really care about rights, appealing to the courts will never be enough. Although many people have lost faith in politicians and the political process, we cannot, as pro-choice Americans are now learning the hard way, demand that the courts always come to our rescue.
But we can demand that of elected representatives. And we should.
