United States: 6 questions about the right to abortion and its challenge by the Supreme Court

On May 2, the news site « Politico » published a draft judgment of the American Supreme Court, carried by the conservative judge Samuel Alito. The document, without definitive value but written after a preliminary vote of the judges according to the online media, provides for the rejection of the « Roe versus Wade » case law, which, since 1973, has made the right to abortion a constitutional right in the United States. United. The leak of the Supreme Court’s draft judgment has provoked a wave of mobilization by American women, fighting to preserve access to abortion, which is more threatened than ever.

Currently, what is the state of the right to abortion in the United States?

The United States operates on a federal system: to a certain extent, each state decides on the laws applied in its territory. Access to abortion is not uniform across the country. But « until the next decision of the Supreme Court, expected at the end of June, the right to abortion is supposed to be protected by the federal state [c’est-à-dire le niveau national, ndlr] », Details Nicole Bacharan, historian and political scientist, specialist in American society. It was the famous “Roe versus Wade” case which, in 1973, established that the right to abortion was guaranteed by the Constitution.

It is therefore, for the moment, prohibited for states to prohibit abortion. Even if “between law and practice, there is more and more distance, underlines the historian. Increasingly restrictive local laws in conservative states complicate access to abortion. “In 1992, Planned Parenthood vs. Casey gave more power to the federated states to regulate abortion, adds Anne Légier, doctor of American civilization, specialist in the history of abortion and contraception in the United States. Over the past ten years, there has been a major trend in the most conservative states to severely limit access to abortion. In the past two years, Texas and Mississippi, for example, have passed legislation making abortion more difficult, by shortening the legal deadlines or increasing the conditions for practicing specialized clinics. In the state of Mississippi, there is now only one clinic authorized to perform abortions.

And if “Roe vs. Wade” establishes that states cannot excessively restrict the right to abortion, it remains only an interpretation of the Constitution – and it is up to the judges (in particular of the Supreme Court) to assess which would be “excessive” legislation in the event of a dispute. « Since the Supreme Court has a conservative majority, some states are deliberately passing unconstitutional laws, » says the expert. Thus, they come before the judges and the case law in force can be questioned. It’s a dangerously effective strategy. The year 2021 holds recourse to a number of federal laws limiting access to abortion.

Concretely, what does the draft Alito judgment propose? Which states would be most in difficulty?

It would not be a stricto sensus ban on abortion in the United States. But it would allow the most conservative states to continue to restrict access to it, or even ban it on their territory. “The Alito judgment says, in short, that the right to abortion does not have to be protected by the Constitution, explains Nicole Bacharan. The conservative judges present this project as a democratic victory, because it would give more power to the States. It is currently estimated that out of the 51 American states, 28 will take advantage of this judgment to severely restrict access to abortion or ban it completely. Already, thirteen States, such as Texas and Mississippi, are ready, legislatively, to prohibit abortion as soon as the text is promulgated. Five others can do so by reinstating laws hitherto deemed unconstitutional, and fourteen others would prepare their legislative arsenal. »

This text is not a surprise: since the appointment by Donald Trump of three very conservative and anti-abortion judges to the Supreme Court, the sword of Damocles hovers above the right to abortion. “But it is clear that the conservative majority of the Court has opted for the most radical solution, underlines Anne Légier. Especially since these judges had explicitly assured that they would not return to the question of abortion, in a desire to respect the decisions of their predecessors. However, there, we are talking about a total questioning of this right.

What weight does the Supreme Court have? Aren’t there safeguards, ways to protect the right to abortion despite everything?

The primary role of the Supreme Court is to interpret the Constitution. When there is a conflict (between a State and a third party, for example), it is she who has the last word on the constitutionality of a law. “It is said that the White House is preparing a response, indicates Nicole Bacharan. But even if the president, Joe Biden, pro-abortion, proposed a law to Congress, in the current configuration, there would be very little chance that it would pass. »

“Congress could pass a law protecting the right to abortion at the federal level, explains Anne Légier. The problem is that the Democratic majority is not significant enough to have a text adopted in this direction. This is why the midterm elections [qui renouvellent en partie le Congrès, ndlr] are going to be particularly important. But either way, the Supreme Court could overturn an act of Congress if it is seized with a dispute — which is bound to happen. “Pro-life” activists (the anti-abortion movement in the United States) could very well bring a case before the Supreme Court to see invalidated a text guaranteeing access to abortion for all American women. « A change in the dynamics within the Supreme Court is extremely unlikely in the immediate future », also deplores the researcher: the life appointment of Supreme Court judges, supposed to be a guarantee of independence, means that those appointed by Donald Trump (Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett), relatively young, should sit for at least forty more years.

Where does this “pro-life” movement come from? Why is he so strong?

« The very name of this movement is biased, since these activists consider that an abortion is a murder », comments Anne Légier. “Pro-life” means that they are “for life” – those of the fetuses, therefore – and oppose the “pro-choice”, who believe that an abortion is a personal choice which is up to the principal concerned. This movement against abortion developed at about the same time as the legalization of abortion in the 1970s, supported by conservative clerics.

« But at the time, the movement had a lot of trouble making itself heard, because religion had no place in politics, » notes Nicole Bacharan. There was a swing of the pendulum after the Vietnam War: there was then a rebirth of conservatives, who questioned the “dissolute” morals of the Americans. “Since the first half of the 1990s, a certain number of doctors and personnel of clinics practicing abortion have been intimidated or even murdered by anti-abortion activists,” recalls Anne Légier.

In addition to these crimes, activists implemented very aggressive and effective strategies, and began to establish themselves locally, through fundraising or the support of candidates who agreed to commit themselves against abortion. All of this accelerated with the arrival of Donald Trump in power, who gave his support to the « pro-life » as no president had ever done before. He received at the White House the « march for life », which was unprecedented, appointed a hundred openly anti-abortion federal judges, and, of course, the three very conservative judges on the Supreme Court. “Donald Trump has largely exploited the issue of abortion by promising during his campaign that he would appoint judges opposed to abortion if he were elected, details the specialist. According to some observers, this would have contributed to his election in 2016, by obtaining the vote of religious conservatives, who, moreover, do not share his ideas. »

If the bill did pass, what would change for women seeking abortion?

Some states, such as California or Illinois, where the right to abortion is enshrined in the Constitution, would become havens for residents of more repressive states. Clinics and doctors in these states would therefore be faced with an even greater flow of patients than at present, when they are already overloaded. The first victims would inevitably be the most vulnerable women (in a precarious financial and social situation, and/or from minorities): to have an abortion, they would have to cross the country, which generates significant costs, requires taking leave, and , often, to have the children looked after. “We often forget that the majority of women who have recourse to abortion in the United States are already mothers of several children,” emphasizes Anne Légier. Passing the Alito bill would therefore reinforce the inequalities that already exist.

“In some states, even medical termination of pregnancy, necessary for many women, would become impossible. In Texas, already today, some doctors report that they no longer dare to perform the necessary care in the event of miscarriage, such as curettage, for fear of being sued. Even acts other than abortion necessary for women’s health would become difficult to access. American women living in conservative states could still access abortion doctors online and be prescribed an abortion pill, which can now be mailed. Although they would be illegal, patients could still have access to them. But this implies having recourse to an abortion within a very tight deadline, since medical abortion is only possible up to seven weeks of pregnancy, while appointment times will necessarily increase in the face of needs. « We would inevitably face a resurgence of clandestine and dangerous abortions for women », deplores Nicole Bacharan.

How does public opinion perceive this possible decline in the right to abortion?

A majority of Americans oppose the Alito plan and support abortion (although with nuances on the conditions of access). “It is important to emphasize that the tightening of the legislation does not follow the evolution of society, supports Anne Légier. The issue of abortion is instrumentalized for political purposes. The researcher notes, however, that a young generation of anti-abortion women, very religious and very militant, has emerged in recent years. “It is a question of regulating morals by law, while religion is losing ground in the United States, insists Nicole Bacharan. The right to abortion is the first to be called into question, but if they get what they want, it will not be the last: the rights of homosexuals, gay marriage, access to contraception will quickly become their next fights. »