Roe v Wade – A Comparison Of The Supreme Court In The US With That In The UK

In our previous article, we discussed issues around data protection in the aftermath of the Roe v Wade judgment in the US. This article will focus on how the results of this judgment would have differed if it had been decided in the UK, and how the introduction of the new “Bill of Rights” in the UK will be changing the landscape of decision-making by the Supreme Court in the UK.

A comparison of the US Supreme Court with the UK

US Supreme Court

Article III, Section 1 of the US Constitution states, “… the judicial power of the United States, shall be vested in one Supreme Court”. This makes it the only part of the federal judiciary specifically required by the constitution. Lower Courts are obliged to follow any precedent which is set by the Supreme Court when they reach decisions. The only area where the Supreme Court does not have jurisdiction is over matters relating to state law. State Supreme Courts have the final say on such matters.

For decades this has meant that the Supreme Court has had the final say on what the constitution allows for. This has led to high-profile decisions on contentious issues around race, the right to abortion, etc. One of these landmark cases was Roe v Wade which guaranteed federal constitutional protections of abortion rights. However, the overturning of the case has now meant that each state can decide whether to restrict/ban abortion.

UK Supreme Court

The Supreme Court is the final Court of Appeal in the UK for all civil cases and criminal cases in England, Wales, and Northern Ireland. At present, any decision reached by the Supreme Court (or indeed any Court in England and Wales) must be consistent with the European Convention on Human Rights (ECHR), which was incorporated into domestic British Law under the Human Rights Act 1998 (HRA). If a decision is alleged to conflict with the ECHR, an individual currently has the right to appeal to the Court of Justice of the European Union.

In relation to abortion rights in the UK, under Article 8 of the HRA, everyone has a Right to Family Life & Privacy. This is the clause that is used to protect the rights of a woman to have an abortion in the UK. However, in the case of A, B, and C v. Ireland (2010), Strasbourg Court held that Article 8 cannot be interpreted as conferring a right to abortion. Since this ruling, Northern Ireland has legalised abortion. In the UK, although there is not an overarching consensus on the right to abortion, the Abortion Act 1967 allows women in the UK to have an abortion as long as specific criteria are met.

Bill of Rights

The current Government has now introduced a new “Bill of Rights” which will repeal and replace the HRA. The Government has stated that the Bill’s purpose is to:

This development has been proclaimed to give the Supreme Court in the UK more of its power back after the ECJ has been seen as taking a central role in recent years. But there have also been discussions around the new powers being used to curtail the executive and give parliament a bigger role in responding to any adverse Strasbourg rulings.

The Bill of Rights will remain a party to the ECHR, but it will be used to limit the power of European judges as it states it will:

The HRA has been used to take action in the UK Courts if their human rights have been breached. But a long-running concern has been that criminals have been able to use these rights to stop being deported. The Government states that they wish to use these new rights to make it easier to deport criminals.

However, there has been a backlash against the proposed Bill due to it stating that ECHR judgments would not be binding in UK Courts. Opponents have stated that this would mean that the rights of particular categories of people would be reduced. In the aftermath of Roe v Wade in the US, the Government was asked to amend the proposed Bill of Rights to include access to abortion as a human right. Dominic Raab has stated that the legality of abortion has already been “settled” and that any amendment could lead to abortion being litigated in the Courts.

Comment 

The introduction of the new “Bill of Rights” will affirm the Supreme Court’s independence from Strasbourg Court. The constitutional role the Court plays will continue to be limited in comparison to the Supreme Court in the US, but it will be interesting to see how the UK will uphold its commitment to the ECHR whilst strengthening the UK Court’s powers to apply human rights in a solely UK context.