The information had the effect of a bomb. According to a draft written by one of the nine Supreme Court justices who leaked in Politicothe highest court in the United States is preparing to overturn its historic decision recognizing the right to abortion in the country since 1973. If this decision is confirmed, “the right to abortion could be threatened, or even disappear, in many states”, underlines Simon Grivet, lecturer at the University of Lille and specialist in the history of law and justice in the United States.
L’Express: Should we fear a cancellation of the right to abortion in the United States?
Simon Grivet: This is indeed what the leak of this preliminary draft suggests. We already knew that this right could be threatened by the Supreme Court, which is made up of six out of nine conservative judges. But it was unclear to what extent they were prepared to overturn the table. What this leak in the press shows us is that the Supreme Court would be ready to choose the most radical option, by deciding to annul its historic decision Roe v. Wade. The latter had been returned in 1973, and believed that the American Constitution guarantees women the right to have an abortion.
By annulling this jurisprudence, the Supreme Court would therefore bring the United States back to the situation before 1973, when each State could decide to authorize or prohibit abortion. Concretely, this right to abortion could therefore be threatened, or even disappear, in many conservative states. In particular in the states of the South of the “Bible Belt” (the belt of the Bible), which is a geographical area marked by Christianity, or in certain conservative states of the Midwest [NDLR : partie nord du centre du pays].
Restrictive laws concerning abortion have already been passed there. In Texas and Georgia, for example, it is no longer possible, in theory, to terminate a pregnancy beyond six weeks of pregnancy, which is extremely short. On the other hand, in other more liberal states such as California or New York, this right is highly protected and should therefore not be threatened.
When could the Supreme Court make this decision?
This could happen in June. Indeed, the Supreme Court rules from October to June, and difficult decisions are generally postponed until the end of the term. This means that states that wish to do so could potentially ban abortion as early as next summer. The logic of the conservatives is that it is not up to the Supreme Court to grant this right, and that the Americans must be left to decide on a case-by-case basis in each state. Since 1973, the Roe v. Wade had given this right to American women throughout the territory. But if this decision is reversed, then this will soon no longer be the case.
This reversal of the Supreme Court would constitute an earthquake in society…
Absolutely, it would be a judicial and political earthquake. Judicial, because the Supreme Court would reconsider a decision in force for fifty years. Political, because it would be a great victory for the conservatives. Despite certain fears, such a profound questioning of the right to abortion did not seem conceivable in the eyes of the defenders of abortion. It is therefore a huge shock, and it is likely that this will give rise to a major mobilization in the streets to protect this right.
This is probably why there was a leak – which is extremely rare in cases involving the Supreme Court. This had not happened for fifty years, due to the very strong confidentiality that weighs on the institution. The fact that there was a leak today shows us what a turning point this decision is. This will have an extremely strong political impact in the months to come.
Joe Biden asked Americans on Tuesday to defend the right to abortion in the next election. Could a cancellation of the right to abortion remobilize the Democratic camp before the midterms next November?
Highly possible. Until now, the Democrats appeared rather in bad shape in these midterm elections which are traditionally unfavorable to the president in place. But the shock linked to this decision will take a decisive place and could remobilize the Democratic electorate, to try, thanks to the ballot box, to protect this right. Everything will also depend on the reaction of the independents, those voters who define themselves neither as Republicans nor as Democrats. If they mobilize in favor of the right to abortion, it could benefit the Democrats.
Can Democrats hope to protect abortion rights in law?
That’s the big question. That’s what Vermont Senator Bernie Sanders proposed. The problem is that the Democrats currently have only a tiny majority in the Senate. They would therefore first have to put an end to the “filibuster”, which is a Senate regulation requiring a majority of 60 senators against 40 to be able to pass a certain number of laws. However, this will be difficult because right-wing Democratic Senators Joe Manchin and Kyrsten Sinema oppose the removal of the filibuster. Moreover, even if this rule were abolished, it is not certain that these two senators would agree to pass a law authorizing abortion in the United States, for fear of displeasing their conservative electorates.
Isn’t a possible abortion ban in certain American states likely to lead to a massive recourse to clandestine abortions?
It is a significant risk. The work of historians and historians for half a century has shown that the prohibition of abortion by law does not prevent the use of abortion. Women who cannot resort to it within a legal framework find themselves forced to do so clandestinely, under conditions that can be dangerous for their health. Going back on the right to abortion is therefore extremely harmful for them. Moreover, it is also a decision that is socially marked, because women who will not have the means to move to a State where this right still exists will be the most threatened.