Thoughts On The Leak

Abortion is a sensitive topic at the best of times. Which explains the uproar over a leaked US Supreme Court draft decision that would overturn the 1973 Roe v. Wade ruling that legalized the procedure in the USA. 

I am curious about this leak. No Supreme Court decision has ever been leaked before. This is a pretty big deal.

I suspect that such a sensitive court document would probably have been in very limited circulation. Which means the person responsible for the leak will probably be revealed.

At best you would think this was a firing offence. I wouldn’t be surprised if criminal charges were laid. And then the media circus will really begin. The leaker will be hailed as a hero by some for sounding the alarm. And vilified by others for their breach of trust..

I will admit I haven’t followed the American abortion debate closely. I know that even in the 1970s there were questions about soundness of the original decision. It seemed in many ways it was only a matter of time before it was overturned.

That happens with laws and court decisions. At one time in Canada the concept of doctor assisted suicide was almost unthinkable. The courts ruled against it.

Now it is the law of the land. (And, if news reports are accurate, many of the abuses predicted by opponents are happening.) The courts changed their mind.

If the draft decision that was leaked to the US media is indeed somewhat close to the final document, it is a milestone in US jurisprudence. It is also one that may not last long. American courts and justices are extremely political.

Judges are perhaps appointed more for their ideological bias than their legal acumen. the US Supreme Court has a “conservative” majority at the moment, but that will probably not always be the case.

Justice traditionally has been blind to bias. That has changed – and the change is being felt in Canada also. There are those who feel that is a good thing. I’m not so sure.

I could argue that we were better served when judges interpreted the law as passed by Parliament rather than trying to write it themselves. The legislature is supposed to express the will of the people.

I’m not sure who the Supreme Court represents. In theory it should be the law, but sometimes that seems lost in political shuffling.

In a way the whole debate over abortion rights, or a “woman’s right to choose” baffles me. I would love to see a serious debate in our society on what constitutes a right. Did you ever think about it?

The USA was founded on the “inalienable rights” listed in their 1776 Declaration of Independence, the best known being life, liberty and the pursuit of happiness. Canada has a Charter of Rights and Freedoms which goes into considerable detail as to what rights Canadians have.

I have always thought of “rights” as being something I was entitled to. Maybe I have an imperfect understanding, but to me most of the things we call “rights” aren’t. They are privileges granted by government, that government can take away on a whim.

Abortion rights in the USA were granted by the courts. Now, apparently the courts are about to remove that “right.” it seems therefore that abortion was never a right, only a privilege.

The same with life and liberty. The state in its might can withdraw either or both. Of the US big three, it is only the pursuit of happiness that the state cannot remove. Neither can it grant it.

It is the same in Canada. The list of “rights” granted by the government has a preamble. “Rights” are guaranteed – subject to limits set out by law. For example, unlimited freedom of expression is not a right – the government gets to choose what is acceptable.

That government is usually hands-off (though perhaps less so in recent years) does not change the equation: rights are a construct of the state to be granted or denied at the whim of the political class. Rights are more liberal in democracies than dictatorships, but the principles remain the same.

I suspect that if the US Supreme Court does overturn Roe v. Wade, the abortion debate in the USA will just move to a different level. State legislatures may enact local laws permitting abortion. Health care is, as I understand it, more in the jurisdiction of the 50 states than the federal government. The debate is by no means ended.

One unintended beneficiary of this decision will be the travel industry. If abortion becomes illegal in the USA, those with means will travel elsewhere for the procedure.

Canada has no abortion laws. I wouldn’t be surprised if there was an advertising campaign being prepared to promote Canada as a safe place to have a reasonably priced abortion.

After all, in Canada abortion is still a right. Whatever that means.


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