Judicial Activism Dealt Huge Blow

Riots big and small broke out across the United States on June 24 when the Supreme Court voted 6-3 to correct a legal mistake it made half a century ago in 1973.

Friday’s decision goes far beyond regulating abortion, not that that isn’t important enough on its own. Contrary to protest signs and certain headlines, the justices did not ban abortion, but didn’t provide protection for it either, of course. All they said was that abortion is regulated by individual state laws and constitutions. In 1973, the justices voted 7-2 that the state could regulate abortion, but that it could not take away the Constitutional right of a woman to make a decision about her own fetus.

Sixty years ago, abortion was illegal and morally objectionable almost everywhere, as Vladimír Palko wrote in “The Lions Are Coming.” There was a flood of laws legalizing abortion in communist countries during the 1950s, and 20 years later, the wave of laws legalizing abortion swept through the West, the ideas flowing from the east. It was easy to pass such legislation in communist dictatorships, but it was not so understandable on its own in the West. In 1969, Norma McCorvey, who went by the pseudonym Jane Roe as the plaintiff in in Roe v. Wade, sought to abort her third pregnancy but was barred by Texas law. Her lawyers sued the Texas attorney general on the grounds that banning abortion was unconstitutional. The case eventually reached the Supreme Court in 1973, and the holding protected unrestricted access to abortion throughout the United States.

The opinion was controversial for five decades until another case provided the court an opportunity to revisit its decision. The new opinion restores the right to regulate abortion to the state. The battle between those who support abortion and those who object to abortion has therefore not ended; it has just shifted to a different battlefield.

Hopefully, by correcting the mistake in Roe v. Wade, the high court will have put an end to, or at least raised a strong barrier against, how the courts assume a legislative role by interpreting the law. The Roe decision was based on the finding that aborting a fetus is a mother’s constitutional right. The Constitution does not provide for this right. In Roe, the justices based their opinion on grounds that have nothing to do with abortion. Byron White, one of the two dissenting justices in Roe, wrote, “I find nothing in the language or history of the Constitution to support the Court’s judgment.” William Rehnquist, the other dissenting justice, believed that “to reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment.”

That’s because the majority justified its decision in Roe by reinterpreting and expanding privacy rights. Since then, everyone has referred to the constitutional right to an abortion. The 1973 decision is a typical example of how judicial activism derails parliamentary democracy. Through the election process, it is not the judges, but the parliamentary representatives whom we empower to make laws.

There are many examples of judicial activism, but like Palko, I will only mention one. Respect for the national flag is part of the national consciousness in every country. It never occurred to anyone in the U.S. that freedom of speech would lead to burning the American flag in public. In 1989, however, the Supreme Court struck down anti-flag desecration laws anyway in Texas v. Johnson. Flag burning thus became a constitutional right. Texas v. Johnson was brought by Gregory Lee Johnson, a member of the Revolutionary Communist Youth Brigade (the youth organization of the Communist Party in the U.S.). During the Hungarian regime change, would we have thought that a handful of American communists had such influence?

The Johnson decision is also strange given that during the American Civil War, Union Gen. Benjamin Butler had William Bruce Mumford, a man who sided with the Confederacy, hanged for tearing down the Union flag. Here is the essence of judicial activism. You don’t have to have a majority in society, you don’t have to spend your time and money on a campaign. It’s enough that you have sufficient influence on the almighty court. And that is the death of democracy.

From the perspective of protecting life, and here it is primarily about protecting the life of unborn children, the court’s decision is of immeasurable importance. While the defenders of life are rightly happy about this, supporters of the abortion industry are organizing wild demonstrations. Let’s not forget that with this 6-3 decision, judicial activism was dealt a huge blow. This has enormous practical significance because international organizations can, and in many cases do, have courts that regularly render arbitrary interpretation of law. Globalism’s fight against national sovereignty takes place on this battlefield, too. Therefore, in our view, the Supreme Court decision is both a defense of life and of the nation at the same time.