When Politico leaked the news in May that the US Supreme Court’s decision in Roe v Wade was set to be overturned, and with it the constitutional guarantee of Americans’ right to abortion, most of the cheering understandably came from the pro-life movement. But you didn’t have to be anti-abortion to welcome the news. The demise of Roe v Wade, after all, did not of itself alter any abortion law or prohibit a single termination. It merely returned the issue to the political arena in each state, with predictably varying results.

As elected assemblies in Texas and Wisconsin tightened up the rules, California said it would enshrine a right to abortion in its state law at least as generous as that in Roe v Wade. On this issue, Stephen Daisley of the Critic hit the nail on the head: 

…the real beneficiary of the new Supreme Court decision was American democracy. The kritarchy, or rule of judges, under which matters of vital social policy had been steadily removed from elected governments to nine wise men and women in DC on the basis of inference piled on tendentious inference about the meaning of the Constitution, had been overthrown.

What is interesting is that while the US is increasing the role of democracy and cutting back on one-size-fits all centrism, Europe, or rather the EU, is discreetly seeking to move the other way. Not on abortion (at least yet, on which see more below) but on social policy more generally.

There is little doubt that Brussels wants to constitutionalise many issues and take control away from state governments, imposing a more uniform approach decided at the centre by a combination of the European Commission and the European Court of Justice. A couple of lawsuits announced last week by the European Commission against two of its own member states provide a good indication of the way things are moving.

The first is against Hungary. A year or so ago, the elected government in Budapest passed a law restricting public distribution of material aimed at minors that displayed or promoted deviation from one’s birth gender identity, gender reassignment or homosexuality. Called on to repeal it immediately by the great and the good in Brussels (not to mention apparatchiks from the UN and other international organisations), Budapest instead doubled down and said the will of the Hungarian people should prevail. 

It now faces infringement proceedings from Brussels demanding its abrogation. These allege, apart from technical breaches of e-commerce and audiovisual services law, that the law is unnecessary for the protection of youth and, importantly, that by retaining it Hungary is illegally acting in breach of European values as laid down in Article 2 of the EU Treaty.

The other lawsuit is aimed at Poland. Long at loggerheads with Brussels over a complaint by the latter that Poland’s rules on domestic judicial appointments are not EU-compliant (the details are toe-curlingly boring and you will be spared them here), Poland’s government last October obtained a ruling from its Constitutional Tribunal that if push came to shove EU law could not prevail over the Polish constitution. However much the European Court of Justice might huff and puff in Brussels, and whatever the EU treaties might say, in Warsaw or Krakow Polish judges had in the end to follow the Polish constitution from which they obtained their powers. 

Such an idea was heresy to the Brussels elite

Such an idea was heresy to the Brussels elite, taught from their infancy that the EU was a sublime and unique legal-political order that had to prevail over all comers. Warsaw as a result now faces a potential injunction from the Luxembourg court telling it to recant. (How a government can be expected to obey an order to override its own constitution as interpreted by its own courts is an interesting question: but that’s a bridge we can cross when we come to it.)

Put these two lawsuits together, and the tendency is clear. Brussels is expanding its pretensions to control social policy in its member states, and to this end is taking steps to establish its own constitutional supremacy such that what it says goes, including if necessary the setting aside not only of national laws but of member states’ own constitutional provisions.

In other words, Brussels is by another route attempting to do very much what the US Supreme Court, which since 1803 has claimed the power to invalidate state legislation, did in its own expansionist phase. About fifty years ago that court, in Roe v Wade, got over the Constitution’s complete silence about any right to abortion by a tendentious pronouncement that (in effect) such a right necessarily followed from the Fourteenth Amendment’s protection against deprivation of life, liberty or property without due process. 

The reasoning of the European Commission in the Hungary case is eerily similar in its extraction of detailed rights from legislative imprecision. Just as the US Constitution is silent on abortion, Article 2 of the Treaty on European Union says nothing at all about making materials on LGBT issues available to minors. Nevertheless, the line taken by the Commission is that its expansive reference to the “values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights”, and to a “society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail” necessarily comports a right in Brussels to control what restrictions elected European governments can put on materials made available to minors. 

If this argument succeeds — and the smart money is overwhelmingly on the Luxembourg court accepting it as a self-evident syllogism — then a major transfer of power will have taken place to Brussels at the expense of the powers of both elected representatives and national constitutions.

In some ways, moreover, this exercise in progressive mission-creep at the expense of popular sovereignty is even more significant and permanent than that which took place in the US Supreme Court in the 1960s and 1970s and is only now being laboriously rolled back.

For one thing, the US Constitution is at least amendable (it has actually been changed 27 times since 1789). The EU Treaty is not, save by unanimous agreement of every member state, a process that in practice would also require cooperation from the centre.

Moreover, there is also a subtle difference between the US Supreme Court that interprets the Constitution and the European Court of Justice that oversees the EU treaties. As we have seen in the last few years, the composition of the former can markedly alter, both socially and politically: indeed, the dumping of Roe v Wade was the result of precisely such a change. 

The court is essentially a law unto itself

By contrast, the European Court of Justice in Luxembourg is rather different, even though like its US equivalent it claims a largely untrammelled power to pronounce on the validity of state laws it sees as non-Euro-compliant (a power it quietly annexed in 1963, despite the silence of the relevant treaties on the point). This court is essentially a law unto itself, deliberately insulated from national or political influence save from Brussels. As Perry Anderson pointed out last year, from the beginning care has been taken to ensure it is staffed by judges noted largely for their loyalty to Brussels and for their commitment to the European project — that is, the progressive centralisation of power at the expense of member state governments. Once this court has decided that a question of social policy is for Brussels and not for elected member state governments, the chances of a later reversal of that decision are vanishingly thin.

Will this ratcheting of power to the centre go further? It is highly likely that it will. Take abortion, the subject of Roe v Wade. For the moment this remains subject to member state law (and laws vary: compare, for example, highly restrictive provisions in Catholic Poland and Malta with the very liberal regime in states like Sweden). But for how much longer will this last? Last November the European Parliament — one suspects with the approval of the Commission — demanded that Poland and Malta be pressured to fall into line, a demand peremptorily repeated last month. 

Can the EU, which clearly has an agenda here, force the issue? One suspects the answer will be that it can. If it is confirmed that Article 2 can be used to control member states’ laws about making materials available to minors, the judges in Luxembourg might well hold that it equally supports the imposition of liberal abortion laws across the bloc. Europeans — more centralisation of social policy is coming. You have been warned.