The first paragraph of the leaked draft of the Supreme Court decision to overturn Roe v Wade states: 

Abortion presents a profound moral issue on which Americans hold sharply-conflicting views.  

Replace America with Ireland, and the same has been the case for over 40 years, until recently. As of the past few years, the issue of abortion is assumed in public discourse to be settled. It is treated as such by the government and by the majority in the media.  

The new narrative is merely about the details and how to enhance the extent and favour granted to abortion. The “controversy” around the National Maternity Hospital (the nuns who ran it for decades were forced out in 2017) is essentially about abortion – available everywhere to everyone at all times and no one shall be seen to dissent.  

If an alien were to land in Ireland, they would be fair in assuming that there were no more than a handful of cranks that object to abortion and that the right to choose was a settled moral dilemma for 99 per cent of the population instead of two-thirds. Any form of restriction is portrayed as an irrational and unfair restriction on freedoms and rights.  

It is in this context that the draft Supreme Court decision to overturn Roe V Wade has been received as an affront to women’s rights and civilised society. Maureen Down, in the Irish Times (May 8th) lamented of the judges: “They are strict constructionists all right, strictly interested in constructing a society that comports with their rigid, religiously driven worldview. It is outrageous that five unelected, unaccountable and relatively unknown political operatives masquerading as impartial jurists can so profoundly alter our lives.” 

This has been the level of commentary on the leaked document and it is a demonstration of principled inconsistency. There were no complaints about the five or six in lifelong unaccountable jobs in 1973 who made the Roe decision. When the answer was acceptable, then the personal views of activist Supreme Court justices were more than welcome.  

Of course, anyone who takes care to read the decision understands that the Court is doing no such thing in this instance. It is not imposing the personal views of a few people. It is merely saying that the right of making the law in this area should be returned to the states themselves and their elected representatives. The draft documents reiterates Justice Byron White’s aptly put dissent from Roe, that the decision represented the ‘exercise of raw judicial power’.  

In response to the leaked document, President Biden – a big D democrat rather than a small d – was less than impressed but he raised an important point that has been missed by many. If the rationale used in the leaked draft decision is formally endorsed by the Supreme Court, “it would mean that every other decision relating to the notion of privacy is thrown into question”. 

This is the crux of the matter. Over the last 60 years, rights have been imagined in the Constitution by judges that have sought to shape the social, political and cultural landscape. Relying on ill-defined terms such as “due process” and manipulating prior judgements in relation to privacy, the Court has attempted to settle matters that people strongly disagree on. In Casey v Planned Parenthood the court attempted to instruct American society to accept its view as settled and to move on.  

The draft decision clearly accepts that this attempt was wrong. If commentators in Ireland are worried about an activist judiciary trampling on women’s rights in the United States, the reality is that the leaked draft decision is a judiciary stepping back from a usurpation of law-making responsibilities.  

The leaked draft decision may well change but it offers the chance for the Court to step back from pushing a secular humanist interpretation of the Constitution on the people of the United States. It resets the narrative of assuming abortion is a settled issue in the United States.  

Where the US goes, Ireland often follows, and it may be a case that the draft decision in the US help create space for a proper discussion. Supreme Court nominee Robert Bork noted that many Supreme Court judges disdain the American people as “motivated by bigotry, racism, sexism, xenophobia, irrational sexual morality and the like”, pre-empting Hilary Clinton’s “basket of deplorables” comments. A similar attitude persists in Ireland toward those who voted against abortion.

Dualta Roughneen is an Irish writer and humanitarian aid worker

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