Abortion: legally, the Supreme Court brings the United States back "to the beginning of the 20th century"

These are 213 pages that sign a step back from the United States in terms of women's rights.

With the Dobbs vs. Jackson Women's Health Organization decision, the Supreme Court on Friday June 24 returned the freedom to the 50 American states to prohibit abortion on their territory.

The 1973 Roe vs. Wade decision, which offered federal protection to women having abortions anywhere in the United States, died.

This reversal, announced several weeks ago, was made possible by the appointment of three conservative judges – Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – under the presidency of Donald Trump (2016-2020), bringing their total to six of the nine judges , including President Roberts, who can swing a vote.

>> To read also:

"The tilt induced by the three judges installed by Trump is clear", explains Corentin Sellin, associate professor of history.

The United States specialist points out on Twitter "the hypocrisy of Chief Justice Roberts", but also his "powerlessness": "(He was) dispossessed of the leadership of the Supreme Court by even more conservatives than him, who are no longer encumbered with half-measures, pretense."

4. We feel all the impotence of Roberts, conservative chief justice, dispossessed of the leadership of the #SupremeCourt by even more conservatives than him, who no longer bother with half measures / pretense.

The shift induced by the 3 judges installed by #Trump is clear

— Corentin Sellin (@CorentinSellin) June 24, 2022

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", recalled last May Jean-Éric Branaa, lecturer at Panthéon-Assas University and 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 judge Samuel Alito wrote in the judgment published on Friday.

“It is time to return the issue of abortion to the elected representatives of the people” in local parliaments. 

The three progressive magistrates dissented from the majority which they say "endangers other privacy rights, such as contraception and same-sex marriages", a concern reignited by appeals from one of the conservative judges, Clarence Thomas, to reopen these files.

The majority "has emancipated itself from its obligation to apply the law honestly and impartially", they denounce in a text with a sharp tone. 

At the beginning of May, the leak of a draft of the decision of the judges of the Supreme Court had already set fire to the powder.

Revealed by the Politico site, this first draft written – again – by Judge Samuel Alito made Emma Long, political scientist and specialist in the history of the American Supreme Court at the University of East Anglia (Norwich) say: “ The outlook is very bleak for abortion rights activists." 

"It is not just a return to before 1973 that is emerging. This decision has the potential to mark a return to the legal situation of the beginning of the 20th century", estimated, meanwhile, Jacob Maillet, specialist in law North American Constitutionalist and professor at Paris Descartes University.

>> To read also: In Texas, it is now almost impossible to have an abortion

This first version of the judgment was already the result of an internal vote of the nine judges to know in which direction the Supreme Court was going to decide a case.

Above all, it already contained the legal justification for calling into question the right to abortion. 

Regarding a 2018 Mississippi law limiting the use of abortion, judges were expressly asked to reconsider the Roe vs. Wade decision.

"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", summed up Jacob Maillet. 

What worried the progressive camp all the more is that this decision "is based on solid arguments", affirmed Jean-Éric Branaa.

Conservative judges had 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 considered "that the constitutional right to privacy does not cover the right to abortion as had been decided in Roe vs Wade", noted 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 almost divine. And the idea that the right to abortion can being quasi-divine has always struggled to be accepted in the United States,” explained Jacob Maillet. 

This Supreme Court ruling 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 text which must be interpreted taking into account the evolution of society", explained in May Jean-Éric Branaa.

The right to abortion and beyond 

Another argument of the "originalists", invoked in the first draft of the decision ending Roe v Wade, was to say that anything not expressly cited in the Constitution as falling within federal jurisdiction is within the purview 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", said Jean-Éric Branaa at the time.

In its recent history, the Supreme Court has used the same broad principle of privacy to rule that it is illegal to criminalize homosexuality (2003), to recognize same-sex marriage (2015), and to protect the right contraception (1965) or even granting a right to pornography (1969).

The Supreme Court's decision on #abortion opens 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 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 of the beginning of the 20th 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". 

Several states wasted no time: in a few hours on Friday, at least seven of them – including Missouri, Louisiana and Alabama – immediately made all abortions illegal.

Difficulty of saving the right to abortion 

Other progressive states – including California, New York and Oregon – on the contrary quickly committed to defending access to abortions on their territory.

"The governors of California, Oregon and Washington released (Friday) a pledge to defend access to reproductive health care, including abortion and contraceptives, and pledged to protect patients and physicians from attempts by other states to export their abortion ban to our states,” they said in a joint statement.

For several weeks, liberals (the American political left) have been feverishly debating 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", summed up Emma Long in May.

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 the United States has failed to ratify an amendment that would recognize equality between men and women, I do not see how they would succeed on a subject that divides opinion much more," underlined Jacob Maillet. 

Failing amendment, the Biden administration could pass a federal law requiring, for example, states to guarantee access to 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", summed up Emma Long.

Joe Biden on Friday asked his compatriots to continue the fight in a "peaceful" way, and above all to defend "at the polls" the right to abortion and all other "personal freedoms" as the legislative elections of mid-terms which are due to take place next November – and which promise to be difficult for the Democratic camp. 

The American president has promised to do "everything in (his) power", by means of decrees and regulatory decisions, to maintain access to abortion.

In particular, he is committed to protecting the right of American women to travel to a state where abortion remains legal, as well as access to abortion pills, used at the very beginning of pregnancy.

But he recognized that his room for maneuver was reduced, and that only the American Congress could restore the right to abortion called into question by the Supreme Court.

This article is an update of a publication of May 3, 2022. Click here to read the original article.

The summary of the

France 24 week invites you to come back to the news that marked the week

I subscribe

Take international news everywhere with you!

Download the France 24 app

google-play-badge_EN