Roe v. Wade to Dobbs v. Jackson: Legal reasonings and law making

It is true that the change of opinion of the US Supreme Court from allowing abortion in Roe v. Wade in 1973 to prohibiting it in Dobbs v. Jackson 2022 does not relate to Pakistan and to the other countries of the world, but does this mean that it has nothing to offer for people and policymakers of other countries?

The fact of the matter is that it does offer a lot of food for thought for all especially political scientists, policymakers, lawmakers and judges. The debate in these two judgments is not about abortion, it is about the way law-making takes place and how it gets revised over a period of time. Framing it around abortion only is limiting its scope and the real debate of decision-making and law-making in society is usually blurred and put on the backburner.

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In this context, some thoughts are recorded

First, irrespective of the legalese and the constitutional machinations, the claim of democracy that it is an open system that offers an opportunity to people to make laws for themselves has been called into question. One set of judges decided in favor and the other against the proposition using the same text of the Constitution. This also brings to fore the old age debate of limits of reason and legal authority.

Second, the West pompously exported its values all over the world claiming these values to be universal truths. The extant debate in reversing the cherished values of the West has exposed the hollowness of the claim as now it has to renege on its stance.

Third, it has revived the significance of divine law as compared to man-made law. This is particularly true from the viewpoint of Islamic Law which has offered some immutable family-related legal provisions that preserve, promote and protect the family system and are not amenable to change by human reasoning. The decision in Dobbs v. Jackson has shown how temporary and fragile the bases of human reasoning and its processes can give way to societal change and reactions.

It must be noted that most Muslims in the US usually find themselves on the side of Roe v. Wade as most of them are aligned to the Democrats and also saw the flexibility of action in Roe v. Wade. It may be interesting to note that in Pakistan, the law of abortion is part of criminal law. It was added to Pakistan Penal Code through Qisas and Diyat amendments that Islamized Pakistan’s criminal law. There are two distinct offenses of Isqat-e-Hamal (Section 338-A) and Isqat-e-Janeen (Section 338-C) that deal with the subject.

Fourth, it has been highlighted that the human race has so far not been able to carve out a method of decision-making that clearly helps in choosing between competing interests. In this case, the decision lay on the concepts of ‘potential life’ and ‘the life of a woman who has to undergo the process. The extreme positions taken by different groups have been recorded in the opening sentences of the opinion of Justice Alito, which is as follows:

“Abortion presents a profound moral issue on which Americans hold sharply conflicting views. Some believe fervently that a human person comes into being at conception and that abortion ends an innocent life. Others feel just as strongly that any regulation of abortion invades a woman’s right to control her own body and prevents women from achieving full equality. Still others in a third group think that abortion should be allowed under some but not all circumstances and those within this group hold a variety of views about the particular restrictions that should be imposed.”

It can clearly be see that there were three groups that have different thinking on the subject and there is every possibility that a judgment containing a third position may soon emerge. This lack of certainty of law has been an academic moot point for society and law-making.

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Fifthly, the two decisions show extreme alternatives

The binary approach to decision-making has been fatal both in governance as well as in law-making. Perhaps this prompted Professor Hart to discuss the ‘minimum content’ of natural law in his doctrine of positive law that relied on processes than substance. He offered allowance to morality in law-making by advocating their mutual forbearance. The two decisions of the US Supreme Court bring forth the debate of the place of morality and evolution in law-making. Justice Alito noted:

“At the time of Roe, 30 States still prohibited abortion at all stages. In the years prior to that decision, about a third of the States had liberalized their laws, but Roe abruptly ended that political process. It imposed the same highly restrictive regime on the entire Nation, and it effectively struck down the abortion laws of every single state…” (Emphasis supplied).

The abruptness induced by the decision of Roe by the then Justices of the US Supreme Court when juxtaposed with the political role of the US President in nominating Justices in the US Supreme Court evinces that the whole process of law-making, adjudication and public policy is amenable to politicking. Changes in society and law-making, most often than not, compete with each other and in a purely positivist legal system, the chances of legal engineering increase.

Lastly, the judgment in Dobbs shows that qualitative reasoning instead of quantitative data and decision-making still make and influence important decisions affecting many in this time and age. This is apparently against the popular perception that weighs data heavily against other reasons. This will be an interesting observation in coming years as many more challenges like Artificial Intelligence, the Internet of Things and Quantum Computing are considered to shape different parts of human life.

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The decision in Dobbs, it must be noted, is as temporal as the decision in Roegiven regarding the fragility of human and legal reasoning shaping these developments. The West needs to understand that all societies and civilizations have their own dynamics, which must be respected. Inclusive global practices will foster an order that will help humanity to prosper and progress.

 

Kamran Adil is currently serving as Deputy Inspector General of Punjab police. He studied law at Oxford University and writes and lectures on international law. The views expressed in the article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.