Abortion regulation – in New Zealand and the USA – belongs in their democratically elected legislatures

 

Guest column by Nicholas Kerr 

Prime Minister Jacinda Ardern’s comments about the US Supreme Court’s recent ruling on abortion inadvertently help explain why the court was right to overturn Roe v. Wade and return the issue to the states.  She noted that New Zealand “recently legislated to decriminalise abortion and treat it as a health rather than criminal issue.”

The passage of that legislation was only the latest in a long and incremental series of policy changes on the subject that have taken place over the past century. 

While many policy issues in New Zealand have divided the country, the divisions have tended to be short-lived as each side had their voices heard and the debates concluded.

As I think back to my days growing up in New Zealand during the 1980s and ‘90s, I recall many controversial public policy debates, but abortion isn’t one of them.

Trump tweets his disagreement – and supporters protest the rulings – after Supreme Court rejects latest challenges to election result

The very foundations of United States democracy have been shaken this weekend as President Donald Trump marshalled his Republican supporters – and the far right – to confront the US Supreme Court.

Twice last week the court threw out challenges by Republicans who alleged widespread voter fraud.

On Friday the court considered the second challenge, by the Attorney-General of Texas, challenging electoral results.  He accused Georgia, Michigan, Pennsylvania and Wisconsin of violating their own state laws, and thereby the US Constitution, by adjusting absentee voting procedures to accommodate the surge in mail-in ballots from voters following public-health guidance during the coronavirus pandemic.

This was President Trump’s last chance to overturn election results before the Electoral College convenes today to formally cast ballots: 306 for Joe Biden, 232 for Trump.

In a brief order, the court said Texas lacked legal standing to bring the case. 

Trump may go but it’s looking more promising for Trumpism

In a charged and partisan election, the people decisively chose – divided government.  Sometimes, American democracy can have you weeping with joy and laughing at the same time.

Should liberals be voting for Trump?

You don’t come to Point of Order for a 5,000 word essay on liberalism (for that you read ‘Liberalism and its Discontents’ by Francis Fukuyama at American Purpose).

But he does have a handy definition:

“Classical liberalism can best be understood as an institutional solution to the problem of governing over diversity … The most fundamental principle enshrined in liberalism is one of tolerance: You do not have to agree with your fellow citizens about the most important things, but only that each individual should get to decide what those things are without interference from you or from the state.“

And using this yardstick of containing diverse views, let’s look at some of the ways in which Trump’s Republicans or Biden’s Democrats might go should they prevail in America’s national elections next week.

America’s Supreme Court battle is refreshingly clear and largely predictable

There is much talk about whether the Republicans should try to fill the Supreme Court vacancy created by the death of the late Justice Ginsburg.  And much of it misses the point.

Leave aside the diversions about not filling vacancies during an election campaign or leaving it to the next president. Justices are appointed through a characteristically American political negotiation between the President and a Senate majority.  If by chance they are in strong agreement, then it is nolo contendere.

The Democrats are entitled to be grumpy that the laws of chance have not worked in their favour.  But politics does not have much room for ‘our turn now’ arguments, particularly when there is no indication that they would keep playing by the rules.

The US Supreme Court does its bit to make the case for Trump

The US Supreme Court’s recent decision on Deferred Action for Childhood Arrivals (DACA) has been discussed mainly in terms of its impact on the Trump administration’s immigration policy.  It’s a demonstration of the importance of the court’s role in America’s separation-of-powers regime.  And it says something about the current relationship between the law and politics in the US.

The substance of the case concerned one president’s ability (Trump’s) to use his executive powers to roll back another president’s (Obama’s) executive decisions.

Bill Clinton’s nemesis is now defending Donald Trump

One of the more compelling moments in the Trump impeachment proceedings was Monday’s defence statement by former Solicitor General and federal Court of Appeals judge, Ken Starr.  That is Ken Starr, the court-appointed special prosecutor who investigated former President Bill Clinton when he was in office, and whose report provided the basis for the unsuccessful attempt to impeach him.

Starr’s role in the current trial – for which he is perhaps uniquely qualified – was to provide a judicial historical perspective.

Nearing the end of what, in less partisan circumstances, would be termed a long and distinguished career, his presentation was more academic colloquium than rigorous interrogation of the facts.  One might almost think that he sees his role as an officer of the court, rather than an advocate.

Britain’s Supreme Court on trial?

Britain’s highest court is hearing arguments this week over the legality of Prime Minister Boris Johnson’s prorogation of Parliament earlier this month.  Its decision is unlikely to shift entrenched views – and may not make much difference to the path or outcome of Brexit.

But a piece in The Times by political commentator Daniel Finkelstein suggests that it may be of the greatest importance for the Supreme Court itself.  In his view, the hearings “may mark the moment Britain stopped being a political democracy restrained by law and became instead a legal democracy tempered by politics”.