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

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The US Supreme Court on Friday ended federal protection of the right to abortion in the United States. A legal earthquake that was made possible by the appointment of three conservative judges under Donald Trump. The judgment, which will be very difficult to contest, could open up other legal challenges in the sphere of privacy. 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 throughout the United States, has 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 President Donald Trump (2016-2020), bringing their total to six of the nine justices, including President Roberts, who can swing a vote.>> Read also: United States: the choice of Amy Coney Barrett to the Supreme Court weighs heavily on the right to abortion “The swing 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”, wrote the conservative judge Samuel Alito in the judgment published 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 only 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 constitutional lawyer and professor at the University of Paris Descartes.>> To read also: In Texas, it is now almost impossible to abort This first version of the judgment was already the result of an internal vote of the nine judges to know in what sense 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 decision 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 Jean-Éric Branaa in May. The right to abortion and beyond Another argument of the “originalists”, invoked in the first draft of the decision ending Roe vs. Wade, was to say that anything not expressly listed in the Constitution as being within federal jurisdiction is within the jurisdiction 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 tackle other subjects”. Several states wasted no time: in a few hours on Friday, at least seven of them – including Missouri, Louisiana and even Alabama – immediately made all abortions illegal. Abortion Other progressive states – including California, New York and Oregon – on the contrary quickly pledged to defend 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 bans to our states,” they said in a joint statement. 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 that the United States has failed to ratify an amendment which would recognize equality between men and women, I do not see how they would succeed on a subject which divides opinion much more”, underlined Jacob Maillet. Failing an 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 asked on Friday , to his compatriots to continue the fight in a “peaceful” way, and above all to defend “at the ballot box” the right to abortion and all the other “personal freedoms” as the mid-term legislative elections which must take place 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 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 at the very beginning of pregnancy. But he acknowledged that his room for maneuver was reduced, and that only the United States Congress could restore the right to abortion challenged by the Supreme Court. This article is an update of a publication of May 3, 2022. Click here to read the original article.

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