The Underemployed European Parliament Is Angry at America’s Supreme Court

The European Union is wonderfully goofy. What other transnational government has three presidents? This has proved to be as ludicrous in practice as in theory. Years ago a planned visit by President Barack Obama triggered a vicious cat fight over who would shake his hand first and sit on his right. Obama ended up canceling his trip.

As one would expect, the European Parliament is a semi-Potemkin creation. It sends its elected assembly to regularly meet in a second city to make one country (hint: it once was ruled by an egomaniac who called himself the Sun King) feel properly respected. The body reigns supreme in Brussels but cannot overrule national legislatures. There is no EU Supremacy Clause, as in the U.S. Constitution.

MEPs, as members are known, are legislators, but have no power to initiate legislation. That function belongs to the European Commission, whose members are appointed by national governments. Although MEPs are elected, voters usually treat their EP votes as throwaways, an opportunity to punish unpopular ruling parties at home. After all, who is much interested in what the Eurocratic elite is doing in Brussels (and, on occasion, Strasbourg as well)?

Having addressed all of Europe’s problems — security threats have been resolved, militaries have been rebuilt, poverty has been eliminated, budgets have been balanced, the Euro’s value has been restored, political divisions have been healed, economic growth has been ignited, the lion has laid down with the lamb — last week the 705 EPs turned their attention to abortion. In America. Another global crisis was to be remedied.

The presiding officer said the topic was “The worldwide threats to the right to abortion in the USA by the Supreme Court.” The EPs staged a grand debate, generously offering their personal views about Roe v. Wade as well as the leaked draft majority opinion in Dobbs v. Jackson’s Women’s Health Organization. Reasserting their ancient prerogative as colonial powers, they lectured we ignorant cousins across the pond about the issue. By a vote of 364 to 154, with 37 abstentions, they instructed Supreme Court justices to uphold the original ruling and “US authorities at all levels” to let everyone who wants an abortion to have one.

But that’s not all. The MEPs were nothing if not thorough, with 33 “having regards” and 20 “whereases,” followed by 32 demands — a mix of “condemns,” “urges,” “encourages,” “acknowledges,” “affirms,” “stresses,” “welcomes,” “expresses,” “reminds,” “underlines,” “instructs,” and “calls,” many, many “calls.” (The EP approved a similarly sanctimonious resolution targeting the state of Texas last October, but then no one noticed.)

The MEPs, desperately frustrated at being ignored at home, decided to judge America. The grand and glorious European Parliament declared that it:

1. Strongly condemns the backsliding in women’s rights and SRHR [sexual and reproductive health and rights] taking place globally, including in the US and in some EU Member States; recalls that SRHR are fundamental human rights which should be protected and enhanced and cannot in any way be watered down or withdrawn; is deeply concerned in particular about the extent to which such prohibitions will contribute to the trauma of rape and incest victims;

2. Expresses its firm solidarity with and support for women and girls in the US, as well as to those involved in both the provision of and advocacy for the right and access to legal and safe abortion care in such challenging circumstances;

3. Reminds the United States Supreme Court of the importance of upholding the landmark case of Roe v Wade(1973) and the resulting constitutional protections of the right to abortion in the US;

4. Strongly condemns any roll-back of human rights and constitutional rights; calls for action to safeguard the right to safe and legal abortion in the US and for the US to refrain from any backward steps; calls on the relevant US authorities at all levels, in line with the WHO abortion care guideline, to fully decriminalize access to and the provision of abortion services, to guarantee safe, legal, free and high-quality sexual and reproductive health services in their territories and to make them easily accessible to all women and girls;

5. Calls on the Government of the State of Texas to swiftly repeal Senate Bill 8; calls on the Governments of the States of Idaho and Oklahoma to repeal their similar laws, including Bill HB 4327 (Oklahoma); calls on all 26 states of the US with trigger laws, laws on the books and other measures concerning bans and restrictions on abortion to repeal them and to ensure that their legislation is in line with internationally protected women’s human rights and international human rights standards.

There’s a lot more. The MEPs are mad at doctors who won’t perform abortions. At the U.S. for not having nationalized health care. At EU member states for refusing to follow the MEPs’ directives. And at Washington for failing to ratify “all remaining UN and regional human rights conventions and protocols.”

Never have so many ignoramuses wasted so much time expressing such stupid opinions!

The first question is, what business is it of legislators who are largely ignored by their own constituents to opine on another people’s affairs an ocean away? Especially since many of their own countries do not meet Roe’s essentially “abortion-on-demand” standard before viability. (The exasperated MEP majority even attacked EU members for ignoring its Siren call!) Admitted the New York Times: “Total abortion bans are growing rarer. But the Roe threshold of legal abortion for any reason until fetal viability is also relatively uncommon.” Indeed, Roe is a radical rule today. It was extremism defined a half century ago.

Explained the Times: Although states that banned abortion would be outside the norm, “with Roe in place, the United States has also been an international outlier on abortion rights, but in the other direction. Few countries allow abortion without restriction until fetal viability, the cutoff set by Roe v. Wade half a century ago — currently around 23 weeks, because of medical advances. That makes the United States one of just over a dozen countries that allow abortions for any reason beyond 15 weeks of pregnancy, the threshold in the Mississippi law that the Supreme Court considered in its private vote to overturn Roe.”

If the MEPs believe abortion is so good, why don’t they remedy this outrage and legalize it for everyone in Europe? Oh, that’s right — they don’t have the legal power to do so. Well, then, why hasn’t some far-seeing European jurist overruled the evil puritanical European governments that have yet to embrace the Roe rule? Oh, that’s right — they don’t have the legal power to do so. Judicial institutions like the European Court of Justice, General Court, specialized courts, and European Court of Human Rights (created through the Council of Europe rather than EU) aren’t allowed to declare themselves to be de facto constitutional conventions and rewrite the continent’s fundamental law. What is wrong with Europe? Why don’t the EPs get busy and resolve this massive failing?

Second, the EPs don’t seem to understand the American political and legal systems. Reversal of Roe would not criminalize abortion. Rather, doing so would simply leave the issue to legislators — like in Europe (meaning real parliamentarians at the national level, not supernumerary MEPs who cost a lot while providing little value). By overturning Roe the Supreme Court would simply be returning to its role as a court, not acting as a second national legislature. As officials within the European Union, made up of 27 independent nation states, the MEPs should understand that not all issues, such as abortion, should be decided at the continental level. In the U.S. abortion is considered to be among the “police powers” inherent to state governments, not among the powers specially delegated to the national government. (The fact that Washington long ago burst its constitutional bounds, with the aid of activist judges who rewrote America’s governing document, does not justify their behavior.)

Third, one suspects that most of the European solons, who appear to have a lot of free time on their hands, never bothered to read Roe and the commentary critical of it. Justice Harry Blackmun didn’t even pretend to be interpreting the Constitution. He began the majority opinion:

We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One’s philosophy, one’s experiences, one’s exposure to the raw edges of human existence, one’s religious training, one’s attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one’s thinking and conclusions about abortion. In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem.

Modern “constitutional” interpretation at its finest! But for more detailed critique I recommend John Hart Ely’s oft-cited The Wages of Crying Wolf, in which a noted liberal (progressive in modern lefty parlance) endorsed the substantive policy imposed but denied that the majority opinion had much of anything to do with constitutional law. Of the decision, wrote Ely: “It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.”

In contrast, the draft Dobbs opinion did not state the court’s judgment on what the law should be. Rather, the presumptive majority insisted that the Constitution left that decision up to state legislators. Abortion would likely remain legal in at least half of the states, while women would be free to travel across state borders to get one. That might be difficult for some, but journalist Jessica Bruder wrote of “a sprawling grassroots infrastructure” of abortion activists preparing for this new world.

Fourth, the MEPs blame America for being a model for the world. They worried that “if the Supreme Court overturns Roe v Wade it may embolden or encourage anti-choice movements to put pressure on governments and courts outside the US to roll back abortion rights and jeopardize the important gains made over recent decades, where more than 60 countries have reformed their laws and policies on abortion to remove restrictions and barriers.” This is already happening, even in Europe — in Croatia and Italy, for instance — with Roe still in place. But if other democratic governments choose to follow America’s example, it will be America’s fault? Seriously!? If Europe refuses to follow the MEPs, maybe they aren’t the sainted moral leaders they imagine themselves to be.

Fifth, the EPs fail to understand how turning jurists into legislators and excluding average folks from any role in deciding fundamental issues is a prescription for social conflict. By shutting down what was a spirited political debate over abortion at the state level Roe was perhaps the single most important catalyst for America’s much-regretted “culture war.” The result was an angry national movement focused on overturning Roe. It took a half century, but a campaign driven by grassroots activists apparently is about to succeed.

Finally, no matter how hard you scour the approved “text,” as the EP refers to it, you will find no mention that a baby is involved in abortion. Perhaps MEPs hadn’t noticed, but pregnancy involves another life. Which abortion kills. Indeed, that is what abortion is all about. Abortion advocates like to minimize the unborn, calling the fetus “a blob of cells,” among many other derogatory things. However, pregnant women, along with expectant fathers, at least those who aren’t pressuring their partner to get an abortion, usually call the fetus a “baby.” As a separate life, babies have independent moral value.

Justice Samuel Alito’s Dobbs draft contrasted abortion with “matters such as intimate sexual relations, contraception, and marriage.” Explained Alito: “abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called ‘fetal life’ and what the law now before us describes as an ‘unborn human being’.” To justify their conclusions the EPs have an obligation to explain away this difference.

That doesn’t mean one cannot legitimately advocate keeping abortion legal. However, any serious argument requires confronting the fact that another life is involved. Even viewing the life as only potential doesn’t change the reality that abortion ends what will be a fully formed person within nine months. The EPs apparently are afraid to even acknowledge this embarrassing reality.

Europe is a nice continent. The Europeans are nice people. But I still don’t care what they think about U.S. policy on abortion, the Supreme Court’s opinion in Roe, or much else about how Americans govern themselves. Instead of attempting to micromanage social policy in Texas, EPs should look around Europe and address their own problems. Leaving Americans to celebrate the democratic process, as the high court hopefully returns a basic issue to the legislative process and the American people.

Doug Bandow is a former Special Assistant to President Ronald Reagan and is author of The Politics of Plunder: Misgovernment in Washington. A graduate of Stanford Law School, he is a member of the California and Washington, D.C. bars.

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