What the possible reversal of “Roe v. Wade” for the Americans

Almost 50 years ago, in 1973, the Supreme Court of the United States handed down the historic decision Roe v. wade, which gave constitutional protection to the right to abortion across the country. And for five decades—year after year, with each new judicial appointment and election—American women have feared losing that right.

The draft of a new decision of the highest American court on the question, revealed Monday evening by the Politico media, now makes them fear the return of a complete ban on abortion, in all circumstances, in several conservative states. . Because if this preliminary document becomes a judgment, Roe v. wade will be invalidated.

However, the judges can still change their minds and render a judgment different from that spread out in the 98 pages posted online by Politico. Except that the judges appointed by Republican presidents dominate the Supreme Court: they are six, against three for the Democrats. And the judgment of 1973 has been in the sights of the Grand Old Party for a very long time.

The suspense is still likely to last for some time: the Supreme Court of the United States normally has another two months to render its final version – and official.

Roe v. wade

The right to abortion has never been absolute in the United States, despite the 1973 decision, and states have always retained certain powers to limit it.

the stop Roe v. wade established that a pregnant woman was free to obtain medical termination of pregnancy without undue restriction from the government. The judges had based their decision on women’s « right to privacy » and the general concept of « liberty », both of which are protected by the US Constitution.

Supreme Court decisions have the force of law across the country. The judgment therefore provided a framework and guidelines for the American States by indicating to them what they could prohibit (or not). The most restrictive legislative measures had thus been immediately invalidated by the judgment.

The judges also then linked the right to abortion to the three trimesters of a typical pregnancy. Regarding the first trimester, states cannot prohibit abortion. During the second, limits may be imposed to protect the woman’s health. Finally, during the third, abortion can be prohibited, as long as exceptions remain possible – to save the life of a pregnant woman, for example.

States with “creative” laws

Since then, US states seeking to ban abortion have gotten creative in crafting their laws.

In the decades that followed Roe v. wade, numerous restrictive laws have been passed across the country, and several have been challenged all the way to the Supreme Court. This is the case, for example, of a law in Missouri which required parental consent for a minor seeking an abortion, or that of the husband of a pregnant woman.

Abortion methods have also been banned over the years, and one of the most used angles of attack by anti-abortion laws was that of the stage at which the termination of pregnancy became prohibited. Thus, in 1992, the challenge of one of these laws before the highest American court led to a modification of the guidelines set in 1973: henceforth, the right to abortion was no longer linked to the trimesters of pregnancy, but to fetal viability. In this decision, the judgment Planned Parenthood v. Casey, however, the United States Supreme Court reaffirms that the right to abortion is protected by the Constitution.

Legislative and legal challenges have not ceased, however, and continue to this day.

What does the draft revealed on Monday say?

The Supreme Court of the United States is currently considering the case of a law passed by Mississippi in 2018 which prohibits abortions beyond 15 weeks of pregnancy, except in the event of a medical emergency or an anomaly of the fetus. It is the draft of the decision in this file which was revealed on Monday.

If the final judgment arrives at the same conclusions as this preliminary document, Roe v. wade that Planned Parenthood v. Casey will be invalidated. “The Constitution contains no mention of abortion, and this right is not protected by any constitutional provision,” wrote conservative judge Samuel Alito.

Some governments could therefore quickly decide to restrict, or even completely prohibit, voluntary termination of pregnancy. This means that women’s right to bodily autonomy will vary — even more dramatically than it does now — from place to place.

In some states, nothing will change: abortion will likely remain accessible as before. But in many, it may be banned, with rare exceptions. And in still others, it could be a crime at all times, both for the woman who wants to obtain it (even if the pregnancy results from rape or incest) and for those who come to her. aid.

Texas and Oklahoma, for example, recently banned all abortions beyond six weeks of pregnancy. These laws remained fragile and subject to challenge under Roe v. wade. But if this judgment is annulled, these laws will no longer have any obstacles.

In short, if the outline revealed becomes reality, the situation would return to that which prevailed before 1973: the States would be free to do what they wish.