Unlike other Western democracies, the United States has never seen opposition to abortion disappear after its legalization.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Protesters outside the U.S. Supreme Court on May 5, 2022, three days after the release of a draft decision that could overturn Roe v. Wade, which guarantees the right to abortion to all American women ALEX BRANDON / AP
In the U.S., all eyes are on the Supreme Court. The institution has been at the heart of a virulent political, legal, and social debate since the publication, on Monday, May 2, by the Politico website, of a draft ruling by the highest American judicial institution that could overturn the famous Roe v. Wade ruling of 1973 that protects the right of American women to terminate their pregnancies. If adopted as per the draft, this ruling will set the country back 50 years, when states were free to individually allow or prohibit abortion.
The document, written in February and under review until June 30, finds that the landmark decision Roe v. Wade was “egregiously wrong from the start” and that nothing in the constitution protects the right to abortion.
Simon Grivet, a lecturer and historian at the University of Lille specializing in law and justice in the U.S. points out that a ruling to overturn the decision would be the culmination of a 50-year-old unwavering struggle by the religious right in a country where abortion is “a structuring political marker”.
The debate over abortion has never ceased to divide the country despite the 1973 Supreme Court decision that legalized the practice. Why is that the case?
It is important to keep in mind that the United States is very different from other Western democracies on this subject. In most countries, including France, opposition to abortion became marginal after legalization. Not so in the U.S. On the contrary, after the introduction of this right, abortion became a structuring political marker in the country. The decision that the Supreme Court is apparently poised to make is the culmination of fifty years of unwavering activism by the religious right.
It is important to consider that the right to obtain an abortion in the United States was granted by the Supreme Court rather than by a traditional political and democratic process. While the decision was taken with a large majority of seven to two, it never achieved consensus and interrupted a political process underway at the time. New York State had made abortion legal in 1970 with Republican support. Oregon had done the same by way of referendum. The Court’s 1973 decision halted this political momentum by prohibiting states from banning abortion before the end of the first trimester of pregnancy. A powerful pro-life movement emerged in response, with the ultimate objective of reversing the new jurisprudence. The issue has been the determining factor in the politicization of an entire religious segment of society.
Republican politicians quickly realized that an anti-abortion stance could help them win elections, making the issue squarely political. The evangelical right now accounts for a quarter of voters, most of them living in parts of the South and Midwest, for example in Indiana. Mostly made up of white Christians, the anti-abortion contingent is also present in some African-American churches and, increasingly, in the Catholic Church, which is very influential among Hispanics. Taking an anti-abortion stance is a great way to win over a lot of voters and also to win key votes among minorities.
Republicans strengthened their base in the southern states, which had been Democratic strongholds until the 1960s. In his 1980 campaign, Ronald Reagan traveled extensively to these states, where he displayed his religious faith and opposition to abortion. After his election, since the right to abortion could only withdrawn by a Supreme Court decision, the issue became the decisive criterion for Republicans when appointing a federal judge
What role did Donald Trump play in what could be the fulfillment of pro-life activism?
Donald Trump has been an important instrument in the long-term strategy of the religious right. In the summer of 2015, when he launched his campaign, he was very marginal in the Republican Party and needed support from the evangelical right. The religious lobby was initially suspicious of the television personality and former casino owner, who had been divorced twice.
He won their support by focusing on law and order, displaying outspoken Islamophobia and, above all, by playing the anti-abortion card and promising to appoint Supreme Court justices opposed to Roe v. Wade. He agreed to follow the recommendations of the Federalist Society, a conservative lobby that compiles lists of judges committed to the notion that the 1973 ruling is an unwarranted interpretation of the Constitution.
The three judges that Mr. Trump appointed during his term in office were therefore known to oppose Roe v. Wade. Conversely, Democrats made little use of this strategy for appointments to the highest court in the land. The current situation was highly determined by the aforementioned circumstances. The Supreme Court is overwhelmingly under the control of right-wing conservatives and it will remain so for many years to come.
What is the legal ideology that characterizes the majority of these Supreme Court justices and does it involve further reversals in jurisprudence?
A fundamental debate has structured American democracy for at least a century: should new rights be acquired through the Supreme Court or legislative action? The question is tantamount to questioning the role of the Supreme Court itself. There are two opposing views in the United States. Advocates of “judicial activism,” reminisce fondly about the Court led by Earl Warren between 1953 and 1969. The Warren Court, mostly remembered for abolishing racial segregation, used several major cases in the 1950s and 1960s to achieve progressive advances at a time when many reforms had stalled in the United States Congress.
An opposing judicial ideology emerged in the 1970s: that of “judicial modesty”, embodied in a current known as “originalist” or “textualist”. The judges advocating this view – several of whom now sit on the Supreme Court – defend a very literal interpretation of the constitution. For them, what is not written in the text of the document does not exist.
Many of the rights granted over the past 60 years, notably by the Warren Court, are based on sometimes fragile interpretations of the constitution that could be challenged by judges who defend a literal reading. This is the case of the right to privacy established by the Supreme Court in 1965 as part of its decision on the right to contraception. The existence of this right is also the basis for the 1973 ruling on abortion and for rights granted to the LGBT community, such as the right to marriage for all. This right to privacy, while it has become decisive, is not written into the constitution but rather derives from the interpretation of the fundamental text by one of the judges at the time.
However, the danger is not certain: the Supreme Court has not issued its decision on Roe v. Wade, and Justice Alito (the author of the leaked text) emphasized the special nature of the abortion issue, suggesting that such a reversal of jurisprudence would not be considered for other rights.
If the Court were to endorse this decision and overturn Roe v. Wade, only a federal abortion law could guarantee it to all women in the country. Is this possible?
No. The Democrats do not have a majority in the Senate and therefore will not be able to pass an abortion bill. Nevertheless, they are presenting a text to mobilize their base six months before the mid-term elections. It is likely that abortion will be a central issue in the November election.
