Great controversy was generated in the United States by the leaking of a draft sentence of the Supreme Court of Justice in which a majority of its judges -five of them, all conservatives-, Tumble Roe vs. wade, a previous decision of this highest instance that legalized abortion in the United States almost 50 years ago.
On the one hand, an intense controversy was unleashed by the leak itself, something without precedent. and many questions about the intentions behind the revelation. This is because it would only be a draft, which is not definitive, and which is filtered for many weeks. before the Court makes a final decision, which is not expected before June.
(Read here: USA: Supreme Court would strike down the right to abortion, according to ‘Politico’ media)
By the way, this very Tuesday, President Joe Biden himself came out to criticize the possible decision warning that his administration would come out to defend women’s rights across the country and that voters should prefer “pro-choice” or pro-freedom candidates in November to decide to retain Congress and be able to pass a national law protecting Roe vs. Wade.
Right now, Biden doesn’t have enough votes in the Senate to pass such a law, and Democrats would have to alter current laws in the upper house to move such legislation.
Besides, Biden warned on Tuesday that he is preparing a “response” to defend the right to abortion in the country before the possibility that the Supreme Court will make it illegal.
Biden directed White House lawyers to prepare “options for an Administration response to the continuing attack on abortion and reproductive rights.”
(In context: What is the ‘Roe v. Wade’ case that guarantees abortion in the US?)
“A woman’s right to choose is fundamental, ‘Roe’ has been the law of the land for nearly 50 years, and fairness demands that it not be overturned.”“, the president clarified in a statement.
The storm that unleashed the leak
The media and experts, moreover, sand they took great care to give full validity to the document published by the portal Politicianeven though everyone reported the news.
This Tuesday, in fact, through a statement, the president of the High Court, John Roberts, confirmed the authenticity of the document and announced an investigation to determine the origin of the leak.
The truth is that the document is based on the previous study of previous sentences of Judge Samuel Alitowho wrote this new concept, and the signs that the Court has been giving since last year about its position on abortion.
Especially since he took possession Amy Coney Barrettjudge nominated by former President Donald Trump and that gave a clear majority of six votes to the Conservatives (the court is made up of nine members).
In accordance with Politicianin an informal vote in February, four of its members, Clarence Thomas, Neil M. Gorsuch, Brett M. Kavanaugh, and Barrett seconded Alito’s motion, which would give them the necessary votes to pass the change even though John Robertspresident of the Court and also conservative, I still wouldn’t have made a decision.
(Read more: USA, inclined to reverse decision that legalized abortion 50 years ago)
Alito’s draft sentence refers to a lawsuit filed last year against a law passed by the state of Mississippi in 2018. This law, known as HB 1510 or the Gestational Age Act, prohibited abortions from 15 weeks from the moment of conception even if they are the product of rape or incest. The only exception is when there is a malformation of the fetus.
on paper, the law would violate two previous sentences of this same Court: Roe vs. Wade of 1973 and Planned Parenthood v. Casey, 19 years later. In both, it was affirmed that the Constitution protected the right of women to interrupt a pregnancy without excessive government intervention, and 24 weeks was established as the general limit for performing an abortion.
But since the issue has divided American society. Republicans, in fact, have been trying for decades to reverse that decision. and the expectation was that they could achieve it once they took control of the Court. Something they controversially achieved in 2017 after the Senate refused to confirm the candidate appointed by President Barack Obama to fill the vacancy left after the death of conservative Justice Antonin Scalía.
Already with the clear majority, the Court began to show signs that it was going after Roe and Casey. Late last year, for example, they refused to even temporarily block another law passed in Texas that limits abortion to 8 weeks.
But the doubt that has existed since then is how radical the Court’s turn would be. That is, whether the goal was to completely eradicate previous sentences or just weaken Roe and Casey’s reach.
(See also: How is the discussion about abortion going in the United States?)
Roberts, for example, was apparently leaning toward rejecting the lawsuit against the Mississippi law. alleging that the medical advances that have been presented in these five decades have allowed the survival of a fetus outside her mother’s womb as of week 15 and that therefore the state could establish this new limit without affecting the constitutional right to abortion, a question that would not be resolved on this occasion.
But Alito’s draft goes much further, since it erases the two sentences in one fell swoop. According to the judge, the previous Courts exceeded their functions in both Roe and Casey, since in the letter of the Constitution there is no protection for abortion.
For these conservative judges, it is the legislators of each state, and not the courts, that must decide on abortion and/or its limits.
If the draft ends up being validated, it would cause an earthquake in the United States. To begin with, many conservative-oriented states will ban abortion altogether with only minor exceptions when the health of the mother is at stake.
In fact, there are already 12 of them that have bills ready to be approved as soon as the Court’s decision is official.
The draft, it should be clarified, does not prohibit abortion in the United States. Therefore, in other states, where the authorities are Democrats, it will continue to be legal if their parliamentarians so decide.
(In other news: Five human fetuses were found in the home of an anti-abortion activist.)
Such a decision would be “catastrophic for women, particularly young women, or poor or people of color who will not have the time or resources to travel to other states.”
In other words, a country in which the practice is allowed in some and persecuted in others. In Alabama, for example, there is a law already ready that contemplates 99 years in prison for any doctor who practices it. But there are others in which it will be allowed even beyond 24 weeks.
Something that, without a doubt, will contribute to the divisions that already exist and will cause the reappearance of clandestine clinics, or the arrival of women in states where it is authorized, among many other consequences.
For Dahlia Lithwick, a lawyer on women’s issues who writes for Slate, the Court would lose all credibility as an independent body and would show that it is ideological and has become a political instrument.
Furthermore, he says, such a decision would be “catastrophic for women, particularly young women, or poor or people of color who will not have the time or resources to travel to other states.”
But for The Dispatch’s David French, the Court simply “I would be restoring the fiber of the constitution that Roe destroyed and that has since divided the country”.
The question, looking further, is what effect such a decision would have on the midterm elections this November and the presidential elections in 2024.
The issue, there is no doubt, will immediately become central in political discourse given the sensitivity that exists towards it in society.
SERGIO GOMEZ MASERI
Correspondent of THE TIME
Washington
On Twitter @sergom68
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