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Reversing Roe - the US should start importing human rights ...


Reversing Roe - the US should start importing human rights rather than pretending to export them

The decision by the US Supreme Court to reverse abortion rights raises a serious question of judicial interpretation

Contributor and analyst

The reversal of Roe v Wade is further proof that the US is self-delusional to think of itself as “the greatest nation on earth”. Unless, of course, greatest nation status is synonymous with robbing women of their full set of human rights. The US should instead ask the rest of the world what it may borrow from it when it comes to progressive jurisprudence, and how to ensure that a nexus between formal politics and legal adjudication does not erode fundamental rights. This is a country that pretends to export democratic values and human rights, but apparently it is now in need of importing them. 

The most basic error made by the majority on the US Supreme Court is the assertion that because there is no explicit right to obtain an abortion mentioned in the country’s constitution, such a right in fact does not exist. It defies logic that jurists could look for the words “every woman has a right to obtain an abortion” as a way of determining whether Roe should remain standing. There are many rights that only get developed explicitly in case law after interpreting what the constitution in fact says. That is not judicial overreach. It is the very point of legal interpretation across the world.

So, you cannot assess the validity of a demand for a right by searching for the right in the original constitutional text. You have to determine whether the express provisions of the constitution, combined with the values and principles underpinning it, as well as the case law that had evolved over time, justify or reveal an implied right, such as a right to obtain an abortion. What you do not do is ask a litigant to point out where in a constitution the right is already expressly provided for. That is problematic for obvious reasons...

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