The US Supreme Court overturning Roe v Wade – reflections on the role of constitutional courts in federal entities

On 24 June 2022 the US Supreme Court overturned a judgement it had given in the 1970s. Back then, the US Supreme Court found that reproductive self-determination is a human right for women, and that US states must not outlaw abortion. In 2022, the Supreme Court found Dobbs v. Jackson Women’s Health Organization that there is no human right to female reproductive self determination, and that states are free to ban abortion on their territory. While I am fully in agreement that this is a huge step backwards for respecting women as equal bearers of human rights, and will result in more women dying from illegal abortions, with this blog I want to discuss a different theme: I want to focus on the role of human rights courts (constitutional courts) in federal entities, such as the United States of America, the European Union, or states such as Germany or Belgium. A federal entity aligns individual elements in a federation. The individual elements are the states in the US, states (Länder) in Germany and communities and regions in Belgium. In the case of the EU, there is some dispute whether it is already a federation. However, it clearly has federal elements in that it unites its Member States into a larger entity, through treaties which also distribute legislative and administrative competences between the Union on the one hand, and the Member States on the other hand.

After the US Supreme Court’s Dobbs v Jackson ruling, my twitter feed was full of commentary stating that this is what you get with a strong constitutional court: judges decide about politically sensitive issues such as abortion rights. Some pointed to Germany, where on the same day legislation abolished the criminal offence of paragraph 219c Criminal Court and allowed medical doctors to inform the public about all the reproductive care they provide, including around abortion. This, the twitterati explained, is how it should be: the legislator decides on abortion rights.

Frankly I think the comparison between Germany and the US refers to a different question: what competences should a constitutional court have in a federation? It also reminded me of debates one could hear at “Brexit” time (yes that was six years before the Dobbs ruling!) around the role of the EU as guarantor of human rights in the UK (roughly recalled). There are many problems with the Dobbs ruling, including the openly political staffing of the US Supreme Court with reversal of modern society in mind. But one of the problems is federal. The US Supreme Court has ruled about abortion rights, but there is no federal legislation on this. Presently, abortion rights are left to the states. In contrast, in Germany, the Federal Constitutional Court has ruled on abortion rights in response to federal legislation, in 1975 and 1993, each time confirming that the state has a constitutional obligation to protect “unborn life” against any pregnant woman by means of criminal law. This results in the requirement for women to undergo a consciousness test before any abortion, because abortion remains unlawful under criminal law, although there is no criminal conviction if correct procedures are followed and completed before the relevant week of pregnancy. The difference between the US and Germany is that only the federal legislator has always used its competence to legislate in criminal law to regulate abortion, thus precluding any state legislation. Thus, while the federal constitutional court rules on abortion laws, the federal legislator has tested the limits of the latest constitutional court de-recognition of female reproductive choice. The conversation between legislator and constitutional court thus moves at the same level, which seems much preferable to a situation where federal judges decide on a field while the legislation is the prerogative of state legislation.

Now, it may be that in the US the federal legislator could create abortion rights as well. Nevertheless the dispute illustrates how important it is to have the correct balance in judicial human rights control. For example, at EU level there is a careful balance between Member States competences and the competence of the Court of Justice of the European Union to rule on fundamental rights violations. The Charter of Fundamental Rights for the European Union only applies to acts of the EU itself, and to acts of its Member States if and when they are bound by EU law in their legislation. In all other cases the national constitutional courts are competent. Thus, the national constitutional courts judge abortion rights as these are national competences, while the Court of Justice of the European Union rules on questions of fundamental rights violation through EU law. The EU is not a human rights organisation in itself, and it is only logical that human rights protection of citizens remains a task for Member States, while the EU itself is bound by human rights in their own activities. If a Member State does not offer its citizens serious human rights protection against the national legislator, EU law takes on some of the function which a national human rights catalogue should fulfil. This is the reason why UK constitutional lawyers bemoaned the loss of the EU derived human rights protection in the aftermath of Brexit, demanding that the UK should retain the CFREU. However, deriving human rights protection against national legislation from a supranational court is problematic in principle, as we can see in the US abortion rights drama: presently, there is no opportunity for a direct dialogue between state legislators and (federal) Supreme Court, which would directly challenge constitutional case law. Without that interplay between legislation and human rights case law, there might indeed be a danger of imbalance between judges and legislators.

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