Roe v. Wade : Why The Constitutional Right To Abortion Could Soon Be Overthrown By The Supreme Court

The Supreme Court has reportedly voted to strike down Roe v. Wade, the landmark case that protects the right to abortion, per a leaked draft majority opinion obtained by Politico.

Roe v. Wade : Why The Constitutional Right To Abortion Could Soon Be Overthrown By The Supreme Court

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Article written by Joan De Suza

Published on 03/05/2022 07:45 Updated 31 minutes ago    Reading time: 5 min.

The Supreme Court has reportedly voted to strike down Roe v. Wade, the landmark case that protects the right to abortion, per a leaked draft majority opinion obtained by Politico. To be clear: Abortion is currently still legal in the United States, and the Court’s decision won’t be final until it's published.

But if Roe does fall, half the states in the nation are poised to ban abortion, leaving millions without access to care. Abortion funds, which directly support people seeking procedures, have already been bracing for that dark future—and they need help now more than ever. Link in bio to learn more and, most importantly, donate.

According to a document revealed by the Politico news website, the highest American magistrates plan to leave each state free to prohibit or authorize abortion.

Women demonstrate for the right to abortion on May 2, 2022, in front of the headquarters of the Supreme Court in Washington (United States). (KEVIN DIETSCH / GETTY IMAGES NORTH AMERICA / AFP)
Women demonstrate for the right to abortion on May 2, 2022, in front of the headquarters of the Supreme Court in Washington (United States).(KEVIN DIETSCH / GETTY IMAGES NORTH AMERICA / AFP)

This is a taste of one of the most anticipated decisions of the year in the United States. On the basis of an extremely rare leak to the highest level of American justice, the political news website revealed on Monday, May 2, that the Supreme Court was considering overturning the historic judgment legalizing voluntary termination of pregnancy (abortion) across the Atlantic. The Supreme Court confirmed on Tuesday in a statement that the document was "authentic" but not "final". Its leader, Judge John Roberts, also "ordered an investigation" into the origin of this leak.

For nearly fifty years, the right to abortion, supported by a majority of the American population, has been guaranteed throughout the country by the 1973 judgment. If it returned to its own case law, the High Court would leave the field open to States that would like to ban abortion. Franceinfo explains this file to you.

What is the current framework in the United States?

Since 1973, abortion has been authorized under the right to privacy, guaranteed by the U.S. Constitution. Thus ruled by the Supreme Court in its historic decision "King versus Wade", pronounced after a woman attacked the constitutionality of Texas legislation, which then made abortion a crime. However, this right is "not absolute", according to the Court's judgment, and the use of abortion may be limited in particular in the name of "the protection of health, medical criteria and prenatal life".

"Abortion is allowed up to the viability threshold, that is, the stage at which a fetus can survive outside the uterus," American historian Mary Ziegler told franceinfo in February. Abortion is therefore legal until about 24 weeks of pregnancy, throughout the United States." Beyond that, each federated state can add restrictions to the right to abortion. Conversely, progressive states have translated this judgment into law, to give it more strength and provide additional guarantees.

What is the Supreme Court considering?

Supreme Court judges chose to address the issue of abortion again in December, thanks to a Mississippi law that prohibits termination of pregnancy after 15 weeks. Faced with yet another attempt by a state to restrict the right to abortion, the theory would like magistrates to recall jurisprudence. "By making abortion a fundamental right, Roe versus Wade has made it possible to prosecute States that pass this type of law and invalidate these texts," recalls Mary Ziegler. But since Donald Trump's visit to the White House, the Supreme Court has been dominated by six out of nine Conservative judges. A turning point seems to have begun.

The Politico news website claims to have obtained, thanks to an unprecedented leak, the preliminary draft of the decision. The 98-page document is attributed to one of the Conservative magistrates, Samuel Alito. The text made public by the American media calls for the outright "annulment" of the 1973 judgment, which was "totally unfounded from the beginning".

"It is time to take into account the Constitution and refer the issue of abortion to the elected representatives of the people."Samuel Alito, author of the preliminary draft decision

in a document revealed by Politico

The right to abortion "is not deeply rooted in the history and traditions of the nation" and "is not protected by any provision of the Constitution," defends Samuel Alito in this document. "The Constitution does not prohibit citizens of each state from regulating or prohibiting abortion," says the conservative judge, paving the way for a major turnaround in jurisprudence.

What are the chances that this preliminary draft will succeed?

According to Politico, the position defended in the preliminary draft was approved by a majority of Supreme Court magistrates: the author of the text, Samuel Alito, and four other conservative judges, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. The three Liberal judges would work in a position of disagreement and the future vote of the President of the Court, John Roberts, remains unknown. When the text was examined in December, the majority had already clearly suggested that it was ready to nibble or even overturn the 1973 judgment.

The preliminary draft, which dates from February, may already have been retouched and can still be negotiated until June 30. "Preliminary drafts are often amended in consultation with other magistrates" and "judges sometimes modify their votes," says Politico. The consequences of this unprecedented leak on public opinion and the attitude of magistrates are also difficult to measure.

The Conservative President of the Court may also want to write his own text. In recent months, observers said they expected a less radical questioning of the 1973 judgment. John Roberts "does not seem opposed to a overthrow of Roe, if it occurs in stages, so as not to rush public opinion", which "supports the right to abortion," analyzed historian Mary Ziegler in February.

What would be the consequences of such a turnaround?

If the conclusion of the preliminary draft is well approved by the High Court, the United States will return to the situation before 1973, when each state was free to prohibit or authorize abortion. Half of the fifty federated states, especially in the Conservative South and Central, will immediately or quickly ban abortion on their territory.

Such a turnaround would be "an abomination, one of the worst and most damaging decisions in modern history," reacted House Speaker Nancy Pelosi and Democratic Senator Chuck Schumer. "The Supreme Court is ready to impose the strongest rights restriction in the last fifty years, not only on women but on all Americans," they warned. Conversely, Republican elected officials praised the "best" news of their lives.

"If the Court effectively overthrows Roe, it will be up to the nation's elected officials at all levels to protect women's right to choose," said President Joe Biden on Tuesday. And it will be up to voters to appoint representatives in favor of abortion [in the mid-term elections] in November."

Author of Abortion and the Law in America, researcher Mary Ziegler stressed as early as February that "the Biden administration would have little room for manoeuvre after such a decision" by the High Court. The historian also warned against a possible snowball effect. "This could pave the way for reversals on other judgments, for example those that have legalized same-sex marriage or mixed marriages," she said. The final decision of the Supreme Court is expected in early summer.

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