Supreme Court takes US back “to the beginning of the 20th century” legally

The 213-page decision represents a setback for the United States in terms of women’s rights. With the decision of the case ‘Dobbs v. the Women’s Health Organization’ of Jackson, the Supreme Court granted on Friday June 24 to the 50 states of the United States the freedom to prohibit abortion within their borders. The decision Roe vs. Wade from 1973, which offered federal protection to women seeking abortions across the United States, no longer exists.

This setback, which had been announced for several weeks, was possible thanks to the appointment of three conservative judges -Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett- under the mandate of President Donald Trump (2016-2020), which adds up to six of the nine justices, including President Roberts, who can tip a vote.

“The change induced by the three judges installed by Trump is clear,” explains Corentin Sellin, professor of history. The American specialist points out on Twitter “the hypocrisy of Chief Justice Roberts”, but also his “impotence”: “(He has been) dispossessed of the leadership of the Supreme Court by people even more conservative than him, whom he no longer Half measures, pretense bother him.”

For the Republican camp, the time had come to turn the page on Roe vs. Wade. “Since 1970, conservatives have considered that the Supreme Court had exceeded its prerogatives with this decision,” recalled last May Jean-Éric Branaa, a professor at the University of Panthéon-Assas and a specialist in American politics and society.

A legal earthquake

“The Constitution makes no reference to abortion and none of its articles implicitly protects this right,” conservative Justice Samuel Alito wrote in the ruling published Friday. “It’s time to return the abortion issue to the elected representatives of the people” in local parliaments.

The three progressive justices distanced themselves from the majority, which they said “endangers other privacy rights, such as contraception and same-sex marriage,” a concern rekindled by calls from one of the conservative justices, Clarence Thomas, to reopen those questions. The majority “has emancipated themselves from their obligation to apply the law honestly and impartially,” they denounce in a sharp text.

At the beginning of May, the leaking of a draft of the decision of the judges of the Supreme Court already unleashed a firestorm. Revealed by the ‘Politico’ website, this first draft, written -again- by Judge Samuel Alito, was made by Emma Long, a political scientist and specialist in the history of the US Supreme Court at the University of East Anglia ( Norwich), said: “The picture is very bleak for abortion rights activists.

“It is not just a return to what is before 1973 that is coming. This decision may mean a return to the legal situation of the beginning of the 20th century,” said Jacob Maillet, a specialist in American constitutional law and a professor at Descartes University in Paris. .

This first version of the sentence was already the result of an internal vote of the nine magistrates on the way in which the Supreme Court would decide a case. Most importantly, it already contained the legal justification for questioning the right to abortion.

Regarding a 2018 Mississippi law limiting the use of abortion, the justices were specifically asked to overturn Roe v. Wade. “That is exactly what this first draft of the decision does: it overturns that precedent and says that the right to abortion is not protected by the Constitution,” Jacob Maillet summarized.

What progressives worried most was that this decision “is based on solid arguments,” said Jean-Éric Branaa. Conservative justices had adopted a so-called “originalist” interpretation of the Constitution to reject Roe v. Wade. This approach consists of sticking as closely as possible to the text of the Constitution and to the meaning that the founding fathers of the United States wanted to give it. And in this sense, the Supreme Court held “that the constitutional right to privacy does not cover the right to abortion as decided in the Roe v. Wade case,” said Éric Branaa.

“The thing to understand 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 had difficulties to be accepted in the United States,” explained Jacob Maillet.

Therefore, for abortion rights activists, this Supreme Court ruling also sounds like the triumph of the “originalist” current to the detriment of those who, as in the time of Roe vs. Wade, believe that the Constitution is “a living text that must be interpreted taking into account the evolution of society,” Jean-Éric Branaa explained in May.

Right to abortion and beyond

Another argument from the “originalists” in the first draft of the decision that ended Roe v. Wade was that everything that is not expressly mentioned in the Constitution as federal competence is the competence of the states. Therefore, Roe vs. Wade was wrong to remove the abortion issue from state jurisdiction.

This logic “opens up a whole field of possibilities for conservatives”, according to Jean-Éric Branaa. In its recent history, the Supreme Court of Justice has used the same great principle of respect for privacy to rule on the illegality of the criminalization of homosexuality (2003), the recognition of same-sex marriage (2015), the protection of the right to contraception (1965) or even the right to pornography (1969).

All these achievements could now 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 at the beginning of the 20th century, when the American legal map was a “mosaic in which each state did a little what it wanted”, recalls Emma Long. But for this expert, “the fight is currently for the right to abortion. Nobody says that the conservatives are going to address other issues next.”

Several states wasted no time: In the first hours after the court’s ruling on Friday, at least seven of them – including Missouri, Louisiana and Alabama – immediately declared all abortions illegal.

Difficulty in saving the right to abortion

Other progressive states – like California, New York and Oregon – were quick to commit to defending abortion access in their jurisdictions.

“The governors of California, Oregon and Washington pledged (Friday) to defend access to reproductive health services, including abortion and contraception, and vowed to protect patients and doctors from attempts by other states. to export their abortion bans to our states,” they said in a joint statement.

For several weeks, liberals (the American political left) have been feverishly debating the best way to save abortion rights.

One of the main ideas is to modify the Constitution to protect the right to abortion. “It’s technically feasible but politically impossible,” Emma Long summed up in May, “because it would require a two-thirds majority in both houses of Congress… which is already unlikely.”

Any amendment to the Constitution would also have to be ratified by three-fourths of the states. “Since the US has failed to ratify an amendment that would recognize equality between men and women, I don’t see how they could succeed on an issue that is much more divisive,” said Jacob Maillet.

Absent an amendment, the Biden administration could pass a federal law requiring, for example, states to guarantee access to abortion facilities. But “such a law may never be enforced in conservative states and I don’t think Joe Biden has the political support to deal with this issue,” Emma Long summed up.

On Friday, Biden asked his compatriots to continue the fight “peacefully” and, above all, to defend “at the polls” the right to abortion and all other “personal freedoms” ahead of the midterm legislative elections. mandate that will take place in November, and that are expected to be difficult for the Democratic side.

The US president promised to do “everything in (his) power,” through executive orders and regulatory decisions, to maintain access to abortion. In particular, he pledged to protect the right of American women to travel to a state where abortion remains legal, as well as access to abortion pills, used in the early stages of pregnancy.

But he recognized that his room for maneuver was limited, and that only the United States Congress could restore the right to abortion questioned by the Supreme Court.

*This article is an update to a post dated May 3, 2022*

*Adapted from its original French version