While 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 in 2022 may not directly relate to Pakistan or other countries, it does offer food for thought for political scientists, policymakers, lawmakers and judges around the world. In this regard, the relevant debate stemming from these two judgments is not necessarily about abortion, it is about the way lawmaking takes place and how it gets revised over time. Framing it around abortion only would be limiting its scope and blurring the real debate of decision-making and lawmaking in society or putting it on the backburner. In this context, the following thoughts have been recorded:
First, irrespective of the legalese and constitutional machinations, the claim of democracy being an open system offering an opportunity to the people to make laws for themselves has been called into question. One set of judges has decided in favour of the proposition while the other has decided against it using the same text of the US Constitution. This also brings to fore the age-old debate on the limits of reason and legal authority.
Second, the West has pompously exported some of its values all over the world claiming them to be universal truths, but the extant debate in the reversing of these cherished values has exposed the hollowness of the claims as the West has to now renege on its stances.
Third, the decision has revived the significance of Divine Law in comparison with man-made law. This is particularly relevant from the viewpoint of Islamic Law which has already 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 and processes of human reasoning are which can give way to societal change and reactions. It must be noted that most of the Muslims in the US usually find themselves on the supportive side of Roe v. Wade as most of them are in alignment with the Democrats and also see 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 the Pakistan Penal Code through qisas and diyat amendments which “Islamized” Pakistan’s criminal law. Two distinct offences of isqat-e-hamal (Section 338-A) and isqat-e-janeen (Section 338-C) deal with the subject.
Fourth, the latest decision has highlighted that the human race has so far not been able to carve out a method of decision-making which can clearly help choose between competing interests. In the given 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 in the following words:
“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 seen that there have been different groups with different thinking over the matter and there is every possibility that a judgment containing a third position may soon emerge as well. This lack of certainty of law has been an academic moot point for society and lawmakers.
Fifth, the two decisions show extreme alternatives. The binary approach to decision-making has been fatal in both governance as well as lawmaking. Perhaps this is what prompted Professor Hart to discuss the ‘minimum content’ of natural law in his doctrine of positive law that relied on processes over substance. He offered allowance to morality in lawmaking by advocating the mutual forbearance of both. The two decisions of the US Supreme Court bring forth the debate on the place of morality and evolution in lawmaking. Justice Alito noted the following:
“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…”
The abruptness induced by the decision in Roe by the then Justices of the US Supreme Court when juxtaposed with the political role of the US President in nominating Justices to the US Supreme Court evince that the whole process of lawmaking, adjudication and public policy is amenable to politicking. Changes in society and lawmaking, more often than not, compete with each other and increase the chances of legal engineering in a purely positivist legal system.
Lastly, the judgment in Dobbs shows that qualitative reasoning, instead of quantitative data, still influences decision-making in this day and age, affecting many. This, apparently, is against the popular perception which weighs data heavily in comparison with other factors. This will be an interesting observation in the coming years as many more challenges like artificial intelligence (AI), Internet of Things (IoT) and quantum computing continue to shape different parts of human life.
It must be noted that the decision in Dobbs is as temporal as the decision in Roe, given the fragility of human and legal reasoning shaping such 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 prosper and progress.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.