The right to abortion is in great danger in the United States. The Supreme Court is on the verge of overturning a historic judgment recognizing the right to abortion for almost half a century, according to a preliminary draft which had the effect of a bomb across the Atlantic.
The newspaper Politico, which is based on an unpublished leak of documents, indicates in an article published Monday, May 2 to have obtained the preliminary draft of a majority decision written by the conservative judge Samuel Alito and dated February 10. Immediately after this leak, hundreds of people spontaneously gathered outside the Supreme Court in Washington, some in protest, others in celebration.
- The facts: what the text of the preliminary draft says
In 1973, Roe v. Wade believes that the Constitution protects the right of women to have an abortion, in the name of the Fourth Amendment which concerns the right to privacy. But this text is “totally unfounded from the start”, decides today the controversial 98-page draft, which can be the subject of negotiations until June 30. “We believe that Roe v. Wade should be overturned,” wrote Samuel Alito in the document, called “Court Opinion” and posted on Politico’s website. “Abortion is a deep moral issue,” said the conservative judge.
According to him, “the Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. The inescapable conclusion is that the right to abortion is not deeply rooted in the history and traditions of the nation”. He adds that this right “is not protected by any provision of the Constitution”.
If this conclusion is accepted by the High Court, the United States will therefore return to the situation in force before 1973 when each State was free to prohibit or authorize abortions.
- Why it matters: Abortion rights at risk in many states
Bills attacking legal delays (in Florida, Arizona, West Virginia…) or medical abortions (South Dakota, Wyoming, Kentucky…) are already on the way. Several states have for their part copied the Texas law, which encourages citizens to sue doctors or clinics performing abortions beyond six weeks, in exchange for thousands of dollars in “compensation”. Idaho passed a similar law in late March. Oklahoma, Missouri and Wisconsin are also preparing comparable texts.
Given the significant geographical and political divisions on the subject, half of the states, especially in the South and the conservative and religious center, should thus quickly banish the procedure on their soil if the Supreme Court confirms its decision. According to the projections of Guttmacher Institute26 of them are “certain or probable” to completely prohibit the right to abortion.
- The context: the Supreme Court overhauled under Donald Trump
The Supreme Court has been profoundly overhauled by former Republican President Donald Trump who, in five years, brought in three judges, reinforcing his conservative majority (six judges out of nine). Since September, this new Court has sent several favorable signals to opponents of abortion. She initially refused to prevent the entry into force of a Texas law which limits the right to an abortion to the first six weeks of pregnancy against two trimesters under the current legal framework.
During the December review of a Mississippi law, which also questioned the legal deadline for an abortion, a majority of its magistrates made it clear that they were ready to nibble or even simply overturn Roe v. Wade. The document presented by Politico relates to this file.
According to the news site, which quotes a person with knowledge of the court’s deliberations, four other conservative justices – Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – voted with Samuel Alito, the three liberal justices are working at a position in disagreement and the final vote of the President of the Court, John Roberts, remains unknown.
“I’m pretty sure there has never been such a leak” in the Supreme Court, commented on Twitter the lawyer Neal Katyal who has repeatedly pleaded for the government of Barack Obama before the high court. For him, “several signs” suggest that the document is authentic. “It is impossible to overestimate the earthquake this will cause within the Court, in terms of the destruction of trust between judges and staff. This leak is the most serious, the most unforgivable of sins”, for his part commented on a blog devoted to the Supreme Court. The Supreme Court itself declined to comment.
- The reactions: very divided opinions
Without waiting for the official decision, hundreds of defenders of the right to abortion but also of people contesting this right met spontaneously in the evening in front of the white marble temple which houses the high court in Washington.
Pro-life and pro-choice activists gather outside the US Supreme Court in Washington, DC on May 2, 2022.
(Photo by Stefani Reynolds / AFP)
Equally divided, the political class also reacted strongly to the Politico article. Several elected Democrats felt that he confirmed “the urgency” of enshrining the right to abortion in law. The move would be “an abomination, one of the worst and most damaging decisions in modern history,” House Speaker Nancy Pelosi and Democratic Senator Leader Chuck Schumer said in a joint statement. . “If this information is correct, the Supreme Court is poised to impose the strongest restriction of rights in fifty years – not just on women but on all Americans,” they warned.
“We must protect the right to choose and enshrine Roe V. Wade in law,” Senator Amy Klobuchar tweeted. A proposal to that effect passed the House of Representatives but is bogged down in the Senate due to fierce Republican opposition. On the contrary, they hailed a long-awaited victory. “This is the best and most important news of our lives,” commented Representative Marjorie Taylor Green, while her colleague Josh Hawley called on the Court to publish its judgment “immediately”.
“Let’s be clear: this is a preliminary draft. It is scandalous, unprecedented but not final: abortion remains your right and is still legal”, tweeted the organization Planned Parenthood, which manages many clinics performing abortions. . She added that her centers “are open” and that they “will continue to provide care, and to fight for you to have the access to the healthcare that you deserve”.