By Tara Romano
Free and fair access to the ballot, competitive legislative districts that force elected officials to be responsive to constituents and a fully independent judiciary are key components of a robust democracy.
Since 2011, it’s been well documented that conservative leadership in North Carolina is engaging in some of the worst voter suppression efforts in the country. During the special legislative session last December, experts seriously questioned whether North Carolina could be considered a democracy any more. And with the recent attempts to further politicize our judiciary system, North Carolina again seems to be attempting to lead the country in establishing a government that has more in common with a corrupt authoritarian state than a democracy by, of and for the people.
Courts matter, and equitable access to a fair and independent judiciary is a core protection for citizens in a democracy. Our founding system of three separate and equally powerful branches of government—executive, legislative and judicial—were designed to put checks and balances on any branch’s overreach. The judicial system especially is a crucial option for citizens looking for protection from government and capitalist oppression.
It’s nearly impossible for the ordinary citizen to gain access to the executive branch of the federal and state government, and it’s becoming increasingly difficult to meaningfully access members of Congress and state legislatures if you don’t have a lot of money or political power to back your request. Although successfully accessing the courts also increasingly requires a significant amount of money, for many citizens fighting against oppression, it’s still an important avenue to justice and equality for all.
This same scenario also applies to reproductive health care access and rights. When some lawmakers considered access to birth control an “obscenity,” the U.S. Supreme Court established first that married couples, then that all people, had the right to access different types of contraception without undue government interference. When many state legislatures refused to provide those seeking abortions with access to a safe and legal option, the Supreme Court stepped in with a 1973 decision stating there was a constitutional right to access abortion care. And they reaffirmed this decision with the 2016 ruling striking down specific ideological restrictions on abortion that are not based in medical science or health standards.
We often hear accusations from opponents of reproductive freedom that these decisions were made by “activist judges;” however, we’ve seen both lower and high court decisions affirming reproductive rights by judges appointed by conservative, anti-choice lawmakers. Legal precedent is legal precedent, and an impartial and independent judge will understand and abide by that, no matter the issue before the court. It unfortunately seems more likely these days to see politics and ideology come into play when judges go against legal precedent and move to restrict reproductive freedom. One just needs to look at the strained logic for allowing employers to have a say in an employee’s birth control decisions (Hobby Lobby case) to see a clearer example of how “activist judges” may work.
While all eyes have been on the Supreme Court for decades on the issue of abortion access, the federal courts that handle many cases that never get to the Supreme Court can also preserve or restrict reproductive freedom. And while these appointments don’t get as much attention, one only needs to check the records of the recently confirmed John Bush and others in the federal judiciary pipeline to see where the next threats to reproductive freedom may come from. And we’ve seen the recent state efforts to further politicize our state judiciary, including potentially gerrymandering judicial districts.
Nationally, anti-abortion lawmakers have gone on a spree of abortion and birth control restrictions, many coming since 2010. And in North Carolina, we’ve seen over 15 new restrictions enacted in that same time. A number of independent courts have issued many injunctions and nullifications of these overreaching laws, allowing many clinics and Planned Parenthood facilities to keep their doors open, and keeping abortion accessible, safe and dignified for patients. But the continued politicization of the judiciary threatens this final bulwark against reproductive oppression. Anti-abortion lawmakers in Ohio are hoping to pass a law setting up a Supreme Court challenge to Roe v Wade, and if the current hostile administration appoints another ideological rather than impartial judge, we may see the precedent set of politicians using the courts to take away established constitutional rights.
Using the courts as a political hammer for personal agendas is a tactic of corrupt oligarchical states. We can and must preserve our independent judiciary for the good of all of us. Suggesting otherwise has no place in a robust citizen democracy.
Tara Romano is the Executive Director of NARAL Pro-Choice North Carolina and immediate past president of NC Women United.