US election 2016: Women’s right to choose at risk with prez’s choice of SC justice - Firstpost

US election 2016: Women’s right to choose at risk with prez’s choice of SC justice


Let’s talk courts. Legislation mandates that the United States Supreme Court have nine justices. There are eight sitting justices currently, soon to be seven. The death of conservative Justice Antonin Scalia and the pending retirement of Justice Ruth Bader Ginsberg means that soon there will be two vacancies on the bench.

Since the death of conservative Justice Scalia, Obama has been blocked from appointing a successor. Earlier this year, he put forth moderate judge Merrick Garland as a potential Scalia successor, but the appointment was blocked by the Republican majority Senate. This is a high-stakes game of chess that has reached stalemate. The next president will be responsible for appointing the two successors and the next US Senate will be responsible for confirming them.

Historically, presidents have used their appointing power to advance political agendas. President Franklin Roosevelt famously advocated for a bill that would allow him to “pack” the court with his appointees. Appointing a justice gives a president the opportunity to extend her legacy past her time in office. Justices stay on the bench until death or retirement, unless they are impeached. The court’s job is to interpret the Constitution. If a case makes it to the court, the court is the final arbiter of legislation. Of course, this has lasting effects on the law of the land.

Republican Vice Presidential nominee Mike Pence has promised to support the appointment of “strict constitutionalists” like late Justice Scalia. Under this theory, the Constitution’s meaning should be the only factor in interpretation. This is a departure from more activist jurisprudence, where factors such as the intention of the law and the problem it was intended to fix are included when interpreting text. What Mike Pence means to say is that he is on board to appoint someone with his values (and Trump’s purported values). Scalia used this textualist interpretation to claim that the Constitution does not promise an individual’s right to privacy, which is the crux of the landmark case Roe v. Wade, which deemed access to abortion a Constitutional right.

Representational image. AP

Representational image. AP

This is an extension of the narrative Republicans have constructed. Republicans tend to claim ownership over the Constitution, claiming that conservative justices are merely interested in interpreting the text as it is written. On the other hand, according to this narrative, liberal activist judges are looking to superimpose their political will over the document. Of course, the Democrats have launched their counter-narrative. A prime example of this counter-attack was when Khizr Khan, the Gold Star father of a slain U.S. soldier, pulled a pocket sized Constitution out of his jacket on stage at the Democratic National Convention. This display was the equivalent of wrapping oneself in the flag.

Like everything else in this electoral system, judicial appointment is a political game. The president can appoint a justice and the Senate must approve the appointment with a standard majority. But of course, every president comes in with a political agenda and every Senate comes with one as well, which often differs from the executive branch’s agenda.

So what does this mean for women?

Well, if your agenda is to repeal Roe v. Wade, you will be affecting millions of women. Abortions will not be performed by doctors in clinics. Women will go back to dangerous bedroom abortions. More women will die due to complications in pregnancy.

And the people who want to make abortion illegal also happen to be the people who are making access to contraception more and more difficult. This is a signal to women that their main purpose in society is to be vessels, bearers of children, and caregivers with no autonomy and no decision-making power over their bodies. This is absolutely unacceptable.

We have already seen cases that seek to weaken access to abortion. Whole Woman’s Health v. Hellerstedt was a case that landed on the docket this summer. Two Texas provisions, requiring physicians who perform abortions to have admitting privileges at a nearby hospital and requiring clinics to have facilities comparable to an ambulatory surgical center, were under scrutiny. These laws were passed with the explicit intention of restricting the number of clinics accessible in Texas, under the guise of mandating additional safety measures for an already safe procedure. It was decided that the provisions constituted an undue burden on abortion providers and abortion access, thus violating the Constitution.

The decision was 5-3, with the predictable spread. Liberal activist judges landed in the majority in this case and conservative textualist judges dissented.

There is a concerted effort to repeal Roe v. Wade. Anti-choice activists are waiting for the perfect test case to appeal and overturn Roe v Wade in the courts. The judicial system is hijacked by whatever political interest monopolizes power at the time. In this case, the rights of women hang in the balance.

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First Published On : Nov 2, 2016 15:03 IST

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