Equality by lot

A post by Summer Anwer, an undergraduate student at American University.

The intention of Dobbs v. Jackson’s Women Health Organization Supreme Court ruling was to give the authority to regulate abortion back to the people and their elected representatives. To uphold this intention and thus validate the ruling, the people’s voices of each state must be prioritized in decision making. States should adopt a form of Ireland’s citizens’ assembly to navigate abortion laws while putting citizens at the forefront of decision-making like the Supreme Court ruling intended.

Ireland’s 35-year battle for abortion rights

In 1983, the Eighth Amendment was introduced to the Constitution and established a constitutional ban against abortion. Following this strict prohibition of abortion was a 35-year battle for safe abortion access.

Several international human rights organizations called on Ireland to repeal the Eighth Amendment. The UN Committee on Economic, Social, and Cultural Rights was “particularly concerned at the criminalization of abortion, including in the cases of rape and incest and of risk to the health of a pregnant woman; the lack of legal and procedural clarity on what constitutes a real substantive risk to the life, as opposed to the health, of the pregnant woman; and the discriminatory impact on women who cannot afford to obtain an abortion abroad or access to the necessary information.”

The Citizens’ Assembly of Ireland

In 2012, Ireland created an assembly of majority citizens to discuss important topics and influence the Oireachtas, the Irish parliament. 66 citizens were randomly selected from the electorate. They require no prior knowledge, as they are given time and background information. The result is a truly representative opinion of what Ireland’s future should be. The assembly merely makes recommendations, which parliament is not required to accept. The other 33 people are politicians and the 100th person is Tom Arnold, a prominent economist.

In 2017, the citizens’ assembly voted that the Eighth Amendment also known as Article 40.3.3º should be repealed. They were given four ballots to shape the referendum, which gradually became more specific about the parameters of the potential referendum.. In 2018, the Irish government sent out a referendum for Irish citizens to vote on which asked if they wished to approve the 36th Amendment which would repeal the Eighth Amendment. 66.4% voted yes which allowed the government to introduce legislation permitting abortion in the first 12 weeks of gestation and up to 24 weeks in some circumstances. Within one year of being presented with this topic, the citizens’ assembly was able to completely change abortion policies to allow for safer abortion access. This proves that allowing the people to choose their nation’s policies and giving them a larger voice in decision-making is more efficient and leads to a happier, healthier society.

The end of Roe v. Wade

On January 22, 1973, the United States Supreme Court legalized abortion nationwide. The Roe v. Wade case challenged a Texas statute that made it a crime to perform a abortion unless a woman’s life was in danger. The Court struck down the Texas statute and recognized the constitutional right to privacy as outlined in the Fourteenth Amendment, ruling that the right to privacy includes a woman’s decision as to whether or not she wants to terminate the pregnancy and why. Additionally, the Court ruled that the government cannot interfere with personal decisions pertaining to marriage, procreation, and family life. The ruling importantly prohibited states from disallowing abortion prior to viability. Before 1973, nearly all states outlawed abortion except in cases where the carriers’ lives were in danger or in instances of rape or incest. The Roe v. Wade ruling deemed these abortion laws unconstitutional which made abortion services safer and more accessible. Women’s health improved drastically after this ruling.

On June 24, 2022, the Supreme Court overruled Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey in Dobbs v. Jackson Women’s Health Organization, abandoning almost 50 years of precedent. Jackson’s Women Health Organization, an abortion clinic, challenged Mississippi’s Gestational Age Act in Federal District Court on the grounds that the act violated the constitutional right to abortion as outlined in the Supreme Court’s precedent in the Roe v. Wade ruling of 1973. The case reached the Supreme Court where it was ruled that, “The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.”

Differences to address when implementing Ireland’s citizens’ assemblies to the United States

The main difference is Ireland does not have states. The U.S. does and furthermore cannot violate the jurisdiction and liberties of the states. To address this difference, it should be left to the individual states and their governments to create these citizens’ assemblies. The federal government cannot have or exert any control over these assemblies so as to not violate state liberties outlined in the Dobbs v. Jackson ruling. Regardless of how the states choose to create and implement the assemblies, they must uphold the core values and goals of the original citizens’ assemblies. They must seek to create a diverse, randomly selected advisory body comprised of mostly citizens, specifically residents of the state. Transportation must be provided to those serving on the assemblies if necessary. They must be given time and background information to properly make their decisions. Experts on the relevant subject matter should be invited to speak to the citizens so that they are able to make well informed decisions. The state governments are not required to take the suggestions as law, but they must listen to and consider each account.

Moving Forward in Post-Roe America

The unfortunate truth is that Roe v. Wade has been officially overturned for over two years now and America has entered an unsafe and unstable climate when it comes to abortion rights. The nation must legally follow the Supreme Court ruling and all its aspects. This includes giving the authority to regulate abortion rights back to the people. Reform to abortion rights can be found in the very text of the ruling. It deems the people should decide and that they should have the authority to regulate along with their elected representatives. Citizens’ assemblies will empower the people on a state-by-state basis and allow them a voice in decisionmaking that even the Supreme Court cannot deny.

The purpose of democracy is to prioritize the voice of the governed. Ireland reformed their democracy by implementing citizens’ assemblies to further bridge the gap between the government and the governed by increasing transparency and thus mutual trust. The Supreme Court ruling dismantled national abortion rights that kept those seeking an abortion safe. They did this in the name of giving authority back to the people. If they truly want the people to regulate abortion rights, then they have to be willing to bridge the gap between government and the governed just as Ireland did. They have to be willing to listen to citizens and allow their voices to influence government decisions.

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