The US Supreme Court is preparing to put an end to federal protection of the right to abortion in the United States, according to revelations from the Politico site. A decision that could constitute a legal earthquake with wider ramifications than the right to abortion and that would be very difficult to challenge.
These are 98 pages that risk setting fire to the powder. They have already pushed hundreds of demonstrators to gather in front of the American Supreme Court since Monday evening, May 2, shortly after the publication by the Politico site of a draft decision of the judges which would call into question the right to abortion.
Gathered to defend “the right of women to dispose of their bodies”, these Americans fear that the highest judicial authority in the country will reconsider the famous Roe vs. Wade judgment of the Supreme Court. Made in 1973, this decision offered federal protection to women having abortions.
But since the presidency of Donald Trump, the Supreme Court has swung to the right of the political spectrum thanks to the appointment of three conservative judges. For the Republican camp, the time had come to turn the page on Roe vs. Wade. “Since 1970, conservatives believe that the Supreme Court had exceeded its prerogatives with this decision,” recalls Jean-Éric Branaa, lecturer at Panthéon-Assas University and specialist in American politics and society.
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“The outlook is very bleak for abortion rights activists,” said Emma Long, a political scientist and specialist in the history of the US Supreme Court at the University of East Anglia (Norwich). “It is not just a return to before 1973 that is emerging, this decision, if confirmed, has the potential to mark a return to the legal situation of the beginning of the XXand century”, believes, meanwhile, Jacob Maillet, specialist in North American constitutional law and professor at the University of Paris Descartes.
More than a leak, a legal earthquake
Make no mistake about it: for the moment, the emotion aroused by the revelations of Politico does not (yet) concern a decision of the Supreme Court. This is a first draft written by Samuel Alito, one of the judges of the Supreme Court, which leaked to the press.
But “it is very rare that the meaning of the decision changes between this version and the final version”, recalls Emma Long. In fact, this first version of the judgment is always written after an internal vote of the nine judges to know in which direction the Supreme Court will decide a case. In other words, the hardest part is already done with this text, and “the changes to be expected concern rather elements of language and formulations”, specifies this expert.
In this case, in the case before them – concerning a 2018 Mississippi law limiting the use of abortion – the judges were expressly asked to reconsider Roe vs. Wade. “This is exactly what this first version of the decision does: it cancels this precedent and affirms that the right to abortion is not protected by the constitution”, summarizes Jacob Maillet.
What is all the more worrying for the progressive camp is that “the decision is based on solid arguments”, says Jean-Éric Branaa. Conservative justices adopted a so-called “originalist” interpretation of the constitution to reject Roe vs. Wade. An approach that consists of sticking as closely as possible to the text of the constitution and the meaning that the founding fathers of the United States wanted to give it. And with this in mind, the Supreme Court now considers “that the constitutional right to privacy does not cover the right to abortion as was decided in Roe vs Wade”, notes Éric Branaa.
“What must be understood is that for Americans, and even more so for ‘originalists’, a right protected by the constitution is sacred, even quasi-divine. And, the idea that the right to abortion can be quasi-divine has always struggled to be accepted in the United States”, explains Jacob Maillet.
This heavy defeat announced for abortion rights activists therefore also sounds like the triumph of the “originalist” current to the detriment of those who, as at the time of Roe vs Wade, believe that the constitution is “a living text which must be interpreted taking into account the evolution of society”, explains Jean-Éric Branaa.
The right to abortion and beyond
Another “Originalists” argument, made in the first draft of the decision ending Roe vs. Wade, is that anything not expressly listed in the constitution as falling within federal jurisdiction is within the jurisdiction of the states. . Roe vs. Wade was therefore wrong to remove the issue of abortion from the jurisdiction of the States.
A logic that “opens up a whole field of possibilities for conservatives”, believes Jean-Éric Branaa. In its recent historythe Supreme Court used the same broad privacy principle to rule that it was illegal to criminalize homosexuality (2003), to recognize same-sex marriage (2015), and to protect the right to contraception ( 1965) or even granting a right to pornography (1969).
The Supreme Court’s decision on the#abortionopens up a field of possibilities that is rather worrying
▶️ It would indeed be based on the questioning of the right to privacy
▶️ However, many decisions have since been based on the same principle ⤵️
— Jean-Eric Branaa (@BranaaJean) May 3, 2022
So many achievements that could be called into question. The Supreme Court could decide to put all these matters in the hands of state governors. The United States would thus return to the situation of the beginning of the XXand century when the American legal map was a “patchwork where each state did as it saw fit”, recalls Emma Long.
But for this expert, “the fight for the moment revolves around the right to abortion. No one is saying that the conservatives will then attack other subjects”.
Can we still save the right to abortion?
Faced with the announced end of Roe vs. Wade, liberals (the American political left) began to debate feverishly the best ways to save the right to abortion.
One of the main ideas would be to amend the constitution to include the protection of the right to abortion. “It’s technically possible but politically impossible”, summarizes Emma Long. In fact, a two-thirds majority would be needed in both chambers of Congress… which is already unlikely.
Any amendment to the constitution would also need to be ratified by three quarters of the states. “Already that the United States has failed to have an amendment ratified which would recognize equality between men and women, I do not see how they would succeed on a subject which divides opinion much more”, underlines Jacob Maillet.
Failing an amendment, the Biden administration could pass a federal law requiring, for example, states to offer abortion centers. But “such a law may never be applied in conservative states and I do not think Joe Biden has the popular political support necessary to engage in a standoff on this issue”, summarizes Emma Long.
But the president could also try to increase the number of justices serving on the Supreme Court and appoint liberal magistrates to turn the tide before the dreaded decision is made. This is called “court packing” and Joe Biden could use it based on his majority in Congress.
Except that there is little chance that he will. First, because “moderate Democrats will most likely oppose it, which means that the president would not have a real majority,” said Jacob Maillet. Then, because it would be perceived as “a purely political maneuver to block a decision taken by a majority conservative court, which would considerably reduce the legitimacy of the Supreme Court which would appear as a simple political tool”, warns Emma Long.
The American president does not intend, however, to stop there. On Tuesday, he called on American voters to make the protection of abortion one of the main themes of the campaign for the midterm elections which are to take place in November 2022.