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An abortion rights protester at the US Supreme Court, May 4 2022 (Photo: Al Drago/Bloomberg via Getty Images)
An abortion rights protester at the US Supreme Court, May 4 2022 (Photo: Al Drago/Bloomberg via Getty Images)

PoliticsMay 5, 2022

What’s happening to US abortion rights?

An abortion rights protester at the US Supreme Court, May 4 2022 (Photo: Al Drago/Bloomberg via Getty Images)
An abortion rights protester at the US Supreme Court, May 4 2022 (Photo: Al Drago/Bloomberg via Getty Images)

A draft opinion leaked this week suggests the US Supreme Court has voted to overturn abortion rights, prompting nationwide protests and warnings that other civil rights could be at risk. How did it come to this, and what does it mean?

What just happened?

The first draft of US Supreme Court justice Samuel Alito’s opinion in Dobbs v Jackson Women’s Health Organisation, the case that will determine whether pregnant people have a constitutional right to choose abortion in the US, was leaked to the media organisation Politico this week. The draft majority opinion appears to overturn Roe v Wade, the 1973 decision that guaranteed federal constitutional protections of abortion rights, and Planned Parenthood v Casey, a 1992 decision that largely maintained the right.

A leak of this sort has never happened before in the history of the US – people are gobsmacked that it occurred at all.

What’s the background to this decision?

Roe v Wade was the landmark 1973 Supreme Court decision that established the constitutional right to choose abortion. Its rationale was based on the right to privacy, a right not explicitly spelled out in the US constitution, but inferred from the cumulative moral effect of the rights that are spelled out.

From the 1980s onward, anti-abortion activists, mainly fundamentalist Christian churches, have lobbied state legislatures to restrict abortions in small but significant ways, slowly working up to the reversal of Roe. In 1992, the Supreme Court decided in Planned Parenthood v Casey to uphold Roe, but to allow states to increase the restrictions placed on abortion, provided they didn’t present an “undue burden”.

In 2016, the Supreme Court decided in Whole Women’s Health v Hellerstedt that targeted regulation of abortion providers (TRAP) laws requiring abortion clinics to meet unnecessarily stringent standards (to force them to close or go bankrupt) were unconstitutional because they represented an undue burden.

Dobbs is the latest in a series of cases inviting the Supreme Court to overturn Roe. The Mississippi law in question prohibits abortion after 15 weeks’ gestation. Based on the principle of stare decisis, the rule of precedent, the Supreme Court would not normally have agreed to hear the case, because abortion is allowed up to viability under Roe.

The Supreme Court is currently controlled by Republican-appointed judges, with six conservative judges and three liberals. According to Politico, in addition to Alito, four of the Republican-appointed judges had voted to overturn Roe. CNN reports that Chief Justice Roberts did not want to completely overturn the decision, meaning he would have dissented from part of Alito’s draft opinion, likely with the court’s three liberals.

Who leaked it?

No one knows who leaked the opinion. 

Some conservatives suspect a court liberal leaked it in the hope the groundswell of outrage would convince one of the conservative justices to change their vote, or influence Roberts to push harder for a decision that wouldn’t allow states to ban abortion outright. It is not a compliment to Roberts to suggest he is swayed by public opinion.

But some liberals suspect a court conservative leaked it, possibly to forestall rioting by reducing the shock when the final decision is released, or to force the court to release the decision earlier. It has been suggested the liberal justices are taking their time with their dissents to increase the amount of time that people can still receive abortion care.

Whoever leaked it, the fact that this happened is a stain on Roberts’ tenure, because it suggests lax management and a culture of less probity and impartiality than previous courts. 

Associate justice Amy Coney Barrett and chief justice John Roberts at the Supreme Court in 2021 (Photo: Jabin Botsford/The Washington Post via Getty Images)

What happens now?

The leak will certainly be investigated. While the Supreme Court confirmed the document was legitimate, it reiterated that it was simply a draft and that it may not be the finalised decision on the subject.

As Politico reported, “Deliberations on controversial cases have in the past been fluid. Justices can and sometimes do change their votes as draft opinions circulate and major decisions can be subject to multiple drafts and vote-trading, sometimes until just days before a decision is unveiled. The court’s holding will not be final until it is published, likely in the next two months.”

If the Supreme Court does use Dobbs to overturn Roe, then the regulation of abortion falls to the individual states, as it was before Roe. This will result in a patchwork of access – states like California, New York, Oregon and Illinois will have access to abortion as usual, while states like Texas, Florida, Missouri and Mississippi will ban abortion. 

People who live in states that ban abortion would then have severely limited options: travel to a state with access, which is expensive; get an illegal abortion, which could result in prosecution and a long jail term; or carry the pregnancy and give birth, whether they like it or not.

What about Congress?

Congress has options. It could pass the Women’s Health Protection Act of 2021, which establishes the right to abortion at the federal level, so it applies to all states. It could increase the number of Supreme Court justices, as their number (nine) is not set out in the constitution. This would dilute the current conservative majority, which many see as illegitimate because of the Senate’s refusal to consider then president Barack Obama’s nominee, Merrick Garland (because it was too close to an election), coupled with the Senate’s insistence on approving Trump’s nominee, Amy Coney Barrett (even though that came even closer to an election).

But Congress cannot access those options. This is because while Democrats have a majority in both houses, their Senate majority exists in name only. Two Democratic senators, Kyrsten Sinema and Joe Manchin, have blocked changes to Senate rules that would allow legislation to be passed on a simple majority, rather than the 60-vote supermajority required to overcome a filibuster. They have also blocked the Women’s Health Protection Act, and the John Lewis Voting Rights Act. Nothing can be done as long as they hold office.

What does this mean for the Supreme Court?

Common law courts rely on the principle of stare decisis, the rule of precedent. This means that cases with similar fact scenarios should be decided the same, unless they can be distinguished in a significant way. The purpose of precedent is to make the law consistent, predictable and stable. 

If the Supreme Court uses Dobbs to overturn Roe, it will have turned its back on the precedent Roe represents. This throws all previous decisions into question – if the rule of precedent no longer holds, then the court’s decisions are unpredictable and arbitrary.

Abortion rights demonstrators outside the Supreme Court this week (Photo: Al Drago/Bloomberg via Getty Images)

What about pregnant people?

The fate of people with unwanted pregnancies in the US will depend on where they live. 

In some states, abortion will be legal and accessible. In others, people will have to scrape together travel money in addition to the cost for an abortion in order to exercise autonomy over their own bodies. People who need abortions for medical reasons may find doctors unwilling to provide abortions for fear of prosecution. Some will send away for medicines for a medical abortion; some will be caught and prosecuted. Some will access surgical abortions from people with good skills who care about helping others; some will access surgical abortions from unscrupulous, unsafe providers. Some will be injured as a result and some will die. 

Some states will empower rapists and random bystanders to sue survivors who get an abortion. Some states may try to limit the ability of women to cross their borders to access abortion, which is blatantly unconstitutional. But with this Supreme Court, who knows if that matters any more?

Decisions that rely on the right to privacy may be overturned in course, like Griswold, which legalised contraception. Obergefell (marriage equality), Lawrence (legalised gay sex), Loving (legalised interracial marriage) and other decisions around equality could also be at risk.

Terry Bellamak is an abortion rights campaigner and former president of the Abortion Law Reform Association of NZ (ALRANZ).

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Image: Tina Tiller
Image: Tina Tiller

OPINIONPoliticsMay 4, 2022

The young need an even higher debt ceiling

Image: Tina Tiller
Image: Tina Tiller

In the hope that governments can catch up in the long term, the finance minister has finally lifted the debt limit that strangled investment for 30 years and squeezed infrastructure spending down into a $104bn deficit. But is it enough?

This is an edited version of a post first published on Bernard Hickey’s newsletter The Kākā.

The big question following finance and infrastructure minister Grant Robertson’s announcement yesterday of a new net public debt ceiling of 30% of GDP, which is effectively 30 percentage points higher than that restrictive older one, is whether it’s enough to both fill the deficit and deal with another 30 years of population growth in a way that improves housing affordability and reduces climate emissions.

My view is the 30% of GDP limit is not nearly high enough to achieve what’s needed and there are no good reasons why it couldn’t be lifted. There’s also the problem of whether politicians would choose to use it if they had it. Robertson is choosing in budget 2022 not to use any more of that headroom for investment because he is worried about adding fuel to the inflation fire, as are more than a few voters, opposition MPs and Reserve Bank governor Adrian Orr. The opposition have yet to agree to the new limit, but are making as many noises as they can about not wanting to use that fiscal headroom.

Grant Robertson (Photo: Hagen Hopkins/Getty Images)

In short, a higher public debt ceiling allows today’s politicians to use the government’s balance sheet to pay for expensive infrastructure up front and then smear it out over decades so the many generations that use it pay for it over those decades. The trouble is there are often short-run costs that today’s voters and asset owners don’t want to pay today, and those who would benefit in the long run either don’t vote today or haven’t even been conceived yet. And zygotes don’t get to vote either.

So how did we get here, and what might happen next?

It’s all about choices, balances and timeframes

Politicians running governments have to make choices every day that they hope will make most voters better off in the short and long runs, and will get them re-elected in the short run at least. The aim is to balance the winners off against the losers in ways that make re-election more likely. The holy grail is to make choices that create two sets of winners in both the short run and long run.

Sadly, the winners and losers in the short run can flip to being losers and winners in the long run respectively, but it is the collective pain and joy of the winners and losers in the short term that usually decides who are the political winners and losers for all time. Perverse incentives and results abound from these political choices and the timeframes over which the winning and losing plays out. A decision that imposes pain on one group of voters in the short run may actually be better for them and everyone else in the long run. Or vice versa. Often, there is a balance to be struck.

This framing of every political decision around “striking a balance” is a clever way to shut down the complaints of the losers, and to give the impression of neutrality divorced from the score-settling and vested interests of party politics.

It is a favourite tactic of Robertson, who is deputy prime minister as well as running the budget and setting the direction for infrastructure spending. In his speech yesterday, the word “balance” came up four times in his arguments for the higher debt ceiling and why he didn’t want to use it yet.

There are plenty of balances to be struck in creating and then working within this framework of a debt ceiling and a budget surplus rule, including:

  • firstly, the risk that overspending by the government in too short a time might overstimulate inflation and therefore boost interest rates higher than they otherwise would be;
  • secondly, there’s a risk that underinvesting in the short run creates costs and liabilities in the longer run, such as decisions not to invest in more infrastructure for housing now creates higher housing, transport, health, education, justice and carbon costs in the long run;
  • thirdly, the risk that choosing to invest in public assets that create services for all over the long run comes at the expense of lower taxes in the short run that help some more than others; and,
  • fourthly, there’s the risk that setting a debt ceiling too high might force up interest rates so high that they squeeze the life out of the rest of the economy and force the debt over a tipping point that means the servicing costs spiral ever higher.

The real question to answer therefore is: what is the right balance to strike with this new debt ceiling rule? It has to be low enough to avoid an interest rates spiral. It has to be high enough to allow investment in infrastructure that creates a positive spiral of rising productivity, real wages, taxes and ultimately, wellbeing.

Treasury recommended a ceiling of net Crown debt of 30% of GDP under a measure that is more widely comparable with other countries. As of the latest forecasts from the IMF (and not far off those from Treasury in the May 19 budget), New Zealand’s net debt is due to peak at 21.3% of GDP next year, and then fall back to 16.4% in 2027.

New Zealand’s peak will be half that of Australia’s, a third of Britain’s peak and a fifth of America’s peak. We share the same AAA credit rating of these borrowers, but they are bigger and therefore can “get away” with higher debt before it becomes a problem. But are we that much smaller, weaker and more vulnerable that we need an extra “buffer” of 30-40% of GDP?

Image: Getty Images

Judgment calls about balances

Ultimately, it is a judgment call about bond market sentiment, the political will of any government to cut spending or increase taxes to get back to surplus and reduce debt, and how fast our economy might grow.

Treasury recommended Aotearoa could handle 90%, but it would be prudent to have a 40% buffer back down to 50% (which is the same as 30% with the new definition).

Wrapped up in that judgment or assessment of the right “balance” is one unknowable but very real risk: sacrificing the wellbeing of future generations by not investing enough. Even Treasury acknowledges that risk in its advice to Robertson:

“There are other costs of constraining spending, such as the lost opportunity to increase an economy’s productive capacity or improve living standards,” Treasury wrote.

The problem is those unknowable future generations don’t have any ability to influence the balances struck by politicians. Instead, they have to hope the politicians have the imagination and enough of a “pay it forward” approach to overcome the short-run demands of getting elected.

New Zealand made the wrong call for a generation by being too restrictive with its debt limit. It risks doing the same again, given the Infrastructure Commission’s advice that the existing deficit and the future needs for infrastructure would require over $200bn of investment over the next 30 years, which is closer to 60% of GDP than 30%.

Yet again, the non-voting young and the yet-to-be-born are getting the short straw in all these political decisions about “striking balances” to get re-elected.

Bernard Hickey’s writing here is supported by thousands of individual subscribers to The Kākā, his subscription email newsletter and podcast. Here’s a special offer to readers of The Spinoff of 50% off for the first year. The Kākā also has a special “$30 for under 30s” offer for all those aged under 30.

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