Amy Coney Barrett and what her nomination means for Roe versus Wade and the US Constitution

Would any 18th or 19th century legislators in the United States Congress have imagined, in framing their Constitution, that it granted a woman a “right” to an abortion? The answer is surely no. And this is the question which lies at the heart of the current political conflict in America over the appointment of a new member of the Supreme Court. President Trump has nominated federal judge Amy Coney Barrett to replace the late lamented Ruth Bader Ginsburg.

Liberals, mainly Democrats, are alarmed, and conservatives, mainly Republicans, are delighted. They both see her appointment as a step on the way to repealing the court's judgement in Roe versus Wade, which ruled unconstitutional any law which prohibited abortion in the first trimester of pregnancy. Several States with Republican governments would like to enact laws to restrict abortion or even ban it altogether, which Roe v Wade prevents them from doing.

It is an extraordinary fact that with the death of Judge Ginsberg, a Jew, and the appointment of Justice Barrett, seven out of nine members of the court, including the Chief Justice, will be baptised Catholics, though one has since become an Episcopalian and a couple of others have said they were non-practising. It is well known that Catholic teaching deplores abortion as the deliberate killing of an unborn human being, contrary to the Commandment “thou shalt not kill”.

But it is not expected that any of the Catholic judges would simply read across from their faith convictions to their judicial rulings, reversing Roe v Wade because it contradicted the Church's teaching. It is not even the case that judges nominated by a Republican President would automatically support Republican causes. Nevertheless there is a distinct division in the ranks of the Supreme Court between conservatives and liberals.

The main distinction between the two schools goes back to our opening question. Strict constructionists apply the words of the US constitution as literally as possible, and those among them who are “originalists” maintain that the current test is to ask: what did the framers of the constitution mean, and what did their contemporaries think they meant (not necessarily the same thing)? It sounds simple, but it isn't. Most of the 18th century framers of the Constitution were slave owners; but no strict constructionist today would argue that that meant slavery was protected by law. Those who framed the 14th amendment after the Civil War would never have imagined that it would one day provide the basis for the argument that abortion was a legal right. We may safely assume nothing was further from their thoughts.

The strict school of judicial interpretation does seem to appeal to Catholic judges in particular. This suggests that they read and interpret secular law in the same way that they read and interpret Church doctrine, that is to say they try to stick as close as possible to the letter of it. As close as possible does not always mean literally.

The alternative school, of which Judge Ginsberg was the most famous advocate, is called judicial activism, and it attempts to adapt constitutional principles to the modern era. Some of its arguments involve the stretching of legal principles almost to breaking point, and sometimes beyond it. Thus Roe v Wade is based on the discovery of a “right to privacy” in the 14th amendment, (which is about something else altogether) and then on the argument that a right to privacy contains a right to abortion. Hence, said the Supreme Court in 1973, the amendment prevents any State legislature from passing laws preventing abortion. It is notable that the European Court of Human Rights has repeatedly refused to interpret the right to privacy, not just implied but explicitly stated in the European Convention on Human Rights, as a right to abortion.

But the conservative case is sometimes just as flimsy. The second amendment, for instance, declares: “A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” The first 13 words make the original intention behind the remaining 14 clear enough: the purpose of the right to bear arms is to provide a “well regulated militia” for the security and freedom of the State. This is transparently based on the recent experience of the American War of Independence against the British, and the perceived threat of it breaking out again.

No honest strict constructionist, basing the argument on the original intentions of the legislators, would find in it any general permission for the ownership of modern high-powered firearms in peace time. Yet it is the conservative, constructionist, tendency that has done most to prevent the proper regulation of guns in America, the horrific consequences of which are all too familiar.

They say Britain has an unwritten constitution and America a written one. But considering the dense fog of legal theory that surrounds the American model, not to mention the ever present influence of partisan politics and ideology, the American Constitution provides even less judicial certainty and stability than the British one. Going back to first principles, which the British Supreme Court likes to do, turns out to be a much more reliable guide to the law than endless wrangling over the hidden meaning of words and the long forgotten intentions of dead legislators.

And it makes for a legal system that is still, relatively speaking, above the politic fray, instead of being, as America is painfully discovering once more, at the very heart of it. If there is one worthwhile mission waiting for the seven of nine Catholics on the US Supreme Court, it is, in the name of the common good, to rescue the Court from politics.