Abortion rights supporters protest outside the Supreme Court on November 1, 2021 in Washington (AFP / MANDEL NGAN)
A majority of US Supreme Court justices on Monday appeared inclined to block a Texas law that represents the biggest blow to abortion rights in nearly 50 years.
Four of the nine magistrates of the Court – the three progressives and the head of the Court John Roberts – had already indicated that they wanted to freeze this text which, for two months, has drastically limited the right of Texans to terminate their pregnancy.
During an emergency hearing, two of their Conservative colleagues, Brett Kavanaugh and Amy Coney Barrett, both appointed by former President Donald Trump, also expressed their skepticism about the law’s novel architecture. which should tip the majority.
“The judges seemed to recognize that the position of Texas is extreme and threatens the foundations of our constitutional democracy,” commented after the hearing Marc Hearron, lawyer for the organization Whole Woman’s Health which operates four clinics practicing pregnancy terminations in Canada. Texas.
“We are comforted by the vigorous questions posed today,” added Julie Murray, lawyer for Planned Parenthood. “But the reality on the ground (…) is that the patients continue to suffer,” she added.
Since September 1, it is forbidden to abort in Texas when the heartbeat of the embryo is noticeable, that is to say after six weeks of pregnancy, even in cases of incest or rape.
A dozen other conservative states have adopted comparable laws, but they have all been struck down in court because they violate the jurisprudence of the Supreme Court.
This recognized in 1973 the women’s right to abort and clarified in 1992 that it applies as long as the fetus is not viable outside the uterus, ie around 22 weeks of pregnancy.
– “Denunciation” –
Abortion rights protest outside the Texas Parliament in Austin, May 29, 2021 (GETTY IMAGES NORTH AMERICA / SERGIO FLORES)
Texas, real laboratory of the most conservative ideas , however imagined an exceptional device which complicates the intervention of the federal justice.
Its law entrusts citizens “exclusively” with the task of enforcing this prohibition, by encouraging them to take civil action against people and organizations that help women to have abortions beyond six weeks.
In case of victory in court, these citizens will obtain 10,000 dollars in compensation, the law provides. Its detractors see it as a “bonus for denouncing”.
Seized urgently for the first time two months ago, the Supreme Court hid behind these “new procedural questions” to refuse to intervene.
His inaction, seen as a sign of the influence of the three magistrates appointed by Donald Trump, had been strongly criticized on the left, Democratic President Joe Biden criticizing a decision that “insults the rule of law”.
The legal battle then intensified, forcing the Supreme Court to take full charge of the case.
– “Genie” –
Holding up signs with irreconcilable messages – “Abortion is essential” or “Let their hearts beat” – defenders and opponents of abortion gathered in front of the headquarters of the high court in Washington on Monday for this hearing eagerly awaited.
In the white marble building, the Nine Wise Men did not discuss this right but only the legal mechanism created by Texas.
The nine judges of the United States Supreme Court: Samuel Alito, Clarence Thomas, John Roberts, Stephen Breyer and Sonia Sotomayor (seated), Brett Kavanaugh, Elena Kagan, Neil Gorsuch and Amy Coney Barrett in Washington on April 23, 2021 (POOL / Erin Schaff)
Ironically on “the genius” who invented this device, the progressive judge Elena Kagan said “not to understand” how her colleagues could have said “we never saw that, so we can not do anything”.
Conservative Brett Kavanaugh, who let the law go into effect in September, this time worried “about the implications for other constitutional rights.”
Could there be “a law which would make it possible to claim millions of dollars from anyone who sells an AR-15 rifle?”, He asked in particular.
Her colleague Amy Coney Barrett for her part stressed that the law could not be blocked at the level of state courts, countering the flagship argument of other conservatives who seemed to want to rely on local justice.
The Supreme Court’s decision, which could freeze the law itself or send the case back to a lower court, is expected to be released fairly quickly.
Whatever it is, the battle will not be over: the high court must examine on December 1 a Mississippi law which prohibits abortion after 15 weeks of pregnancy. For observers, it could take advantage of this more classic text to begin to unravel its case law, by returning at least to the criterion of “viability of the fetus”.
chp / rle