This has been an interesting week for the Supreme Court of the United States. The court has the final say on the interpretation of the US constitution and has decreed the existence of constitutional rights to abortion and same-sex marriage.
Given that it falls to the court to determine such politically charged issues, the appointment of its justices is itself highly politically charged, all the more so as those justices – of whom there are nine – are appointed for life.
Many observers believe that a major factor in the presidential election of 2016 was the victor’s entitlement to make nominations to the court.
On Thursday, Anthony Kennedy, who will be 82 next month, announced his retirement. Kennedy was nominated by Ronald Reagan and took his seat in 1988. He is generally regarded as the “swing vote” on the court. For this reason, the appointment of his successor is likely to be highly controversial.
Before his retirement was announced, however, Kennedy had been busy.
He delivered the majority opinion in Obergefell v Hodges, legalising same-sex marriage in 2015. Then, in early June this year, Kennedy wrote the majority opinion in Masterpiece Cakeshop judgment, in which the court held that the actions of the Colorado Civil Rights Commission in compelling a Christian baker to create a bespoke cake for a same-sex marriage ceremony breached his right to the free exercise of religion.
Majority
On Tuesday, Kennedy joined the five-four majority in NIFLA v Becerra, in which the court condemned a Californian law that required pro-life crisis pregnancy centres to notify women that the State provides free or low-cost services, including abortions, and give them a telephone number to call.
Kennedy’s short concurring opinion is a stirring defence of the importance of freedom of speech. He spoke of the “serious threat presented when government seeks to impose its own message in the place of individual speech, thought and expression” and said that in requiring pro-life centres to promote the State’s preferred message, advertising abortions, the Californian law “compels individuals to contradict their most deeply held beliefs, beliefs grounded in basic philosophical, ethical or religious precepts”.
This decision, with its emphasis on the importance of freedom of expression and belief, has a particular resonance for Ireland in the aftermath of the abortion referendum, in light of the Government’s proposals concerning the role of GPs.
Many GPs do not wish to participate in a system that will allow abortions for any reasons up to 12 weeks, as they take the view – rightly, in my opinion – that the deliberate killing of an innocent human being is inexcusable, whatever the law may say about it.
Contrary to Justice Kennedy’s warning that governments “must not be allowed to force persons to express a message contrary to their deepest convictions”, our Government is determined to do just that, and more than that, by forcing GPs who have a conscientious objection to abortion to “refer” women seeking abortions to another GP who does not. This is an affront to freedom of conscience and to freedom of expression. It is the State, under threat of force, compelling its citizens to participate in the deliberate killing of a human being. And it is completely unnecessary.
What makes the Government’s threat of force against GPs so egregious is that, even if one could credibly make the case that a particular woman’s right to access an abortion should trump a particular doctor’s right to refuse to be complicit in one, we live in the age of the internet, when anybody with a smartphone or access to a computer can find out how and where to obtain an abortion in seconds.
There is no impediment to the Government publishing a list of GPs who are prepared to offer abortion as one of their services, along with their contact details. Post-referendum, facilitating access to abortion is now the responsibility of the State, not of individual doctors, nor of any individual who has an objection to taking part in one.
Targeting
If conscientious objection is not fully protected, we can predict what will happen: abortion activists will target pro-life GPs by presenting in their surgeries asking for abortions, in the hope that the GPs will refuse to refer. Once they do, the activists will report them to the authorities and try to ruin them. This is precisely what has happened in the “bake the cake, bigot” cases that have cropped up around the world of late.
And just like in those cases, where the couple simply crosses the street to buy the cake from another shop, once the GP refuses to refer, the activist will easily find another GP who will prescribe abortion pills. The abortion will be carried out and, as a fringe benefit, a “bigoted” GP will be exposed to opprobrium and the prospect of financial and professional disaster for his or her “regressive” stance.
This will all be presented as progressive and forward thinking, just as the Californian legislature presented its rules in Becerra. We would do well, however, to bear in mind Justice Kennedy's reminder that it is the hallmark of authoritarian regimes that they are relentless in their attempts to stifle free speech. He warned: "It is not forward thinking to force individuals to be an instrument for fostering public adherence to an ideological point of view they find unacceptable". We shall see whether our Government and legislature can keep their authoritarian impulses in check enough to allow for the true exercise of a free conscience. I sincerely hope they can.
Maria Steen is a spokeswoman for the Iona Institute