United States: we explain to you why the constitutional right to abortion could soon be overturned by the Supreme Court

It’s a taste of one of the most anticipated decisions of the year in the United States. Based on an extremely rare leak at the highest level of American justice, the Politico news site (article in English) revealed on Monday, May 2, that the Supreme Court was considering overturning the historic judgment legalizing voluntary termination of pregnancy (abortion) across the Atlantic. For nearly fifty years, the right to abortion, supported by a majority of the American population, has been guaranteed throughout the country by this case law alone. If it reversed its own judgment, the High Court would leave the field open to States wishing to prohibit this practice. Franceinfo explains this file to you.

What is the current framework in the United States?

Since 1973, abortion has been permitted under the right to privacy, guaranteed by the US Constitution. So judged the Supreme Court in its historic decision “Roe versus Wade”, pronounced after a woman attacked the constitutionality of Texas legislation, which then made abortion a crime. However, this right is not “not absolute”according to the judgment of the Court, and recourse to abortion may be limited in particular to the name of “the protection of health, medical criteria and prenatal life”.

“The abortion is authorized up to the threshold of viability, that is to say the stage from which a fetus can survive outside the uterus, specified the American historian Mary Ziegler to franceinfo, in February. Abortion is therefore legal until approximately 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 force and provide additional guarantees.

What is the Supreme Court considering?

Supreme Court justices chose to take up the abortion issue again in December, thanks to a Mississippi law that prohibits pregnancy terminations after 15 weeks. Faced with this umpteenth attempt by a State to restrict the right to abortion, the theory would have judges recall the case law. “By making abortion a fundamental right, Roe versus Wade has made it possible to sue states that pass this type of law and have these texts invalidated”, recalls Mary Ziegler. But since Donald Trump’s time in the White House, the Supreme Court has been dominated by six out of nine conservative judges. A turning point seems to have been triggered.

The Politico news site (in English) claims to have obtained, thanks to an unpublished 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“cancelation” pure and simple of the judgment of 1973, which was “totally unfounded from the start”.

“It is time to take the Constitution into account and return the issue of abortion to the elected representatives of the people.”

Samuel Alito, author of the draft decision

in a document revealed by Politico

The right to abortion “is not deeply rooted in the nation’s history and traditions” and “is not protected by any provision of the Constitution”defends Samuel Alito in this document. “The Constitution does not prohibit the citizens of each state from regulating or prohibiting abortion”pushes the conservative judge, paving the way for a major reversal in case law.

What are the chances of this pre-project succeeding?

According to Politico, the position defended in the draft was approved by a majority of Supreme Court justices: the author of the text, Samuel Alito, and four other conservative justices, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. The three liberal justices are said to be working to a dissenting position and the future vote of the President of the Court, John Roberts, remains unknown. During the examination of the text in December, the majority had already made it clear that it was ready to nibble on, or even reverse, the 1973 judgment.

The preliminary draft, which dates from February, could already have been touched up and can still be the subject of negotiations until June 30. “Drafts are often amended in consultation with other magistrates” and “judges sometimes change their votes”, emphasizes Politico. The consequences of this unprecedented leak on public opinion and on the attitude of magistrates also remain difficult to measure.

The Conservative President of the Court might also want to write his own text. In recent months, observers have said they expect a less radical challenge to the 1973 ruling. John Roberts “does not seem opposed to a reversal of Roe, if it comes in stages, so as not to rush public opinion”who “supports the right to abortion”thus analyzed the historian Mary Ziegler in February.

What would be the consequences of such a reversal?

If the conclusion of the draft is 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 Center, will immediately or quickly ban abortion on their territory.

Such a reversal would constitute “an abomination, one of the worst and most damaging decisions in modern history”responded the Speaker of the House of Representatives, Nancy Pelosi, and the leader of the Democratic senators, Chuck Schumer. “The Supreme Court is ready to impose the strongest restriction of rights in fifty years, not only on women but on all Americans”, they warned. Conversely, elected Republicans welcomed the “best” news of their life.

“If the Court does overturn 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 (link in English)tuesday. And it will be up to voters to appoint pro-abortion representatives [lors des élections de mi-mandat] in November.”

Author of Abortion and the Law in Americaresearcher Mary Ziegler pointed out in February that “the Biden administration would have little room to maneuver after such a decision” of the High Court. The historian also warned of a possible snowball effect. “This could pave the way for reversals on other judgments, for example those which legalized the marriage of same-sex couples or mixed marriages”, she advanced. The Supreme Court’s final decision is expected in early summer.

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