When Judges Decide on Abortion

The morning after the Supreme Court ruled that it would not stand in the way of restrictive abortion laws, I was in a Houston hotel with a pool shaped like Texas.

It was September 2021, and the Supreme Court had just issued a peremptory order late at night refusing to hear a challenge to Texas’ restrictive new abortion ban. The court opinion that officially struck down Roe v. Wade would not arrive until nine months later.

But the September no-decision decision, part of what is sometimes called the “shadow file” that comprises brief orders and denials of certiorari in cases that do not get hearings or full written decisions, made it clear that states could pass laws prohibiting abortion. and the court would not intervene. That meant the Texas restrictions would go into effect, even though Roe v. Wade was still technically the law of the land.

I remember thinking that the Texas-shaped pool in the background as I read the brief decision seemed terribly awkward, as if reality slipped away a bit to remind me that such decisions have an immediate effect on people’s lives.

The way in which that shift occurred, through a decision by high court appointed judges that bypassed the usual process of adjudicating a legal case, outlined a democratic fracture that is emerging in polarized nations around the world. .

This week, two more abortion cases, argued in courts more than 5,000 miles away, highlight those 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 is expected to dramatically limit Poland’s already poor access to abortion.

And in Amarillo, Texas, a federal judge heard arguments 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 place to start is, as always, with a report from The New York Times. My colleague Monica Pronczuk reported on the trial from Warsaw, where the defendant was convicted despite the fact that the woman who received the pills said that she had a miscarriage. An earlier story, written with Katrin Bennhold about the risks to women who have followed Poland’s abortion ban, provides important context for what is at stake.

It’s no coincidence that this latest battle is taking place in court. As I wrote in 2020, Poland’s right-wing Law and Justice Party tried unsuccessfully to pass new abortion restrictions in 2016, but the opposition blocked the bill in the legislature. So the government turned instead to the country’s highest court, which was packed with party loyalists. The court ruled that abortion in cases of fetal abnormalities was unconstitutional.

Although that sparked the largest public protests 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 entwined with 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 context on the Texas case, in which the plaintiffs have asked a judge to revoke the Food and Drug Administration’s approval of one of the most common types of abortion pills.

The judge has not yet issued his ruling. But private lawsuit 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 the legislature.

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

“If Congress is paralyzed, that doesn’t mean policy change won’t happen. It just means that the places of that policy change change,” Eric Schickler, a political scientist at the University of California, Berkeley, who researches political change in the United States, told me a few months ago.

That shift puts the levers of policy in the hands of those with the resources and motivation to fight costly court battles, which tends to privilege the wealthy and those with hard-line views, and discourage pragmatic engagement. In Poland, activists on both sides of the abortion issue, including the conservative Catholic group that was a civil party in this week’s case and the woman convicted in it, vowed to keep fighting.

Meanwhile, ordinary doctors and hospitals in Poland, for fear of being sued or prosecuted, have become reluctant to even try to take advantage of exceptions to the abortion ban, with deadly consequences for some pregnant patients. A similar pattern is now playing out in many US states with abortion bans, as hospitals and pharmacies try to avoid liability, even if it puts the patients in their care at risk.

Putting judicial decisions outside the normal mechanisms of democratic accountability is supposed to be a feature of systems like the United States, where the judiciary seeks to check the power of elected officials. But if too much power is transferred to the judiciary, then it could potentially usurp democratic functions and eventually cloud the legitimacy of the system.

“The American system of checks and balances, with its unusual dispersal of political authority, has long provided formidable barriers to democratic rollback,” Schickler wrote in an article with a Berkeley colleague, Paul Pierson. “However, many of the stabilizing forces that were traditionally attached to these institutions now appear much weaker. In fact, in some cases, these arrangements now introduce new polarizing elements.”

His analysis was limited to the United States, whose institutions are somewhat unique. But Poland is not the only other polarized democracy to have seen a similar pattern.

In Israel, the judiciary served as a brake 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. Now the right-wing government is trying 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 followed growing concerns about the chief justice’s aggressive efforts to protect last year’s election, which have raised alarm that his growing power, wielded with little oversight, it could also be a threat to Brazilian democracy.