Courts and Democracy: The Production and Reproduction of Constitutional Conflict

Abstract

In 2007, the United States Supreme Court issued the Carhart decision, the first since the 1973 ruling of Roe v. Wade to uphold the facial validity of a statute that limits access to abortion without express provision of an exception for a woman's health, as contrasted with her life. Carhart offers broad lessons about the role of courts in democracy, the effects of national and transnational movements on the meaning of law, and the autonomy of women, health professionals, Congress, and judges, including those sitting on the Supreme Court.

A brief foray into comparative and transnational law finds the debate about abortion in courts, legislatures, and intergovernmental bodies around the world. By considering the bases of the judgments from these various jurisdictions, one sees that analyses of abortion have moved beyond the framework of privacy, liberty, and equality, which are the frequently proffered premises for supporting women's abortion rights in the United States. Transnationally, the issue of reproduction is framed in relation to health and safety; to the human rights of dignity and autonomy, nondiscrimination on the basis of race, age, and gender; economic opportunity; and to freedom of speech, conscience, and religion.

Instead of presuming that judicial review displaces or silences democratic processes, the interaction of Roe, Carhart, and the transnational exchanges make plain that the practices of democracies depend on dialogic interaction among the many groups within and across social orders. Rather than presume courts are a problem for democracy, this essay explores why courts should be seen as resources. Legal generativity, from all sides of the political spectrum, is an artefact of adjudication in democratic polities.

Keywords: Carhart, Roe v. Wade