I recently spoke to you about the second anniversary of the invalidation of the judgment Roe v. Wadein the United States, which, since the 1970s, has protected the right to abortion throughout the country. Beyond the alarming decline in the right to abortion in several states, I told you that the last two years have been marked by a considerable deterioration in reproductive and obstetric care wherever limits have been placed on the right to abortion.
The new strict prohibitions expose health professionals to serious charges, and they do not fit well with pre-existing regulations and guidelines aimed at ensuring the quality of care provided to patients. When in doubt, we abstain, which has the effect of closing the doors of emergency rooms, hospitals, and clinics to pregnant women when they are in a critical situation. By failing to adequately treat complications, we allow the situation to deteriorate, when we do not send them home altogether.
This is a perfect reflection of the cascade effect caused by the most spectacular decisions of the Supreme Court of the United States in recent years. It has been said many times that abortion was only one piece of a larger political project, of which the Court is the instrument of implementation, which aims to reconfigure social relations in favor of the actors and institutions that have everything to gain from the deployment of an authoritarian political project: corporations, religious organizations, ultraconservative political factions…
We must return to the stop again Dobbs v. Jackson on abortion, because it clearly marked the beginning of an ascent. An ascent that seems to have reached a climax in the decisions rendered by the Court at the end of June, before the end of its session.
In Dobbsthe roadmap was already clear. First, on the social level: the invalidation of the right to abortion constituted a first step towards the confiscation of several other rights linked to the intimate life of individuals.
From Roeabortion was based on the right to privacy deduced from 14e amendment to the United States Constitution. This amendment, which provides that no person shall be deprived of life, liberty, or property, without due process of law (” without due process “) allows several freedoms to be implicitly recognized. This doctrine, called the ” noun due process “, allowed the recognition of several rights essential to social progress: gay marriage, sexual relations between people of the same sex, access to contraception, for example.
Now, in DobbsJustice Clarence Thomas wrote in black and white that now that the right to abortion no longer holds, it will be necessary, in all coherence, to revisit all the rights thus founded on the 14e amendment. An invitation so troubling that it prompted Justices Breyer, Sotomayor and Kagan to conclude in their dissent that this decision “takes aim, we fear, at the rule of law.” This assertion takes on its full meaning in the Court’s most recent decisions.
“The president is now a king above the law.” That was the phrase Justice Sotomayor chose to sum up the effect of the court’s decision on the first day of July, granting the president absolute immunity for any act done in office. “Informal” acts, it was said, remain subject to criminal charges. But the notion of official act is so broadly construed that there are virtually no safeguards. Ordering the execution of a civilian or political opponent, supporting an armed insurrection, a coup d’état, accepting a bribe — all of these would now fall under the umbrella of presidential immunity.
With just months to go before Donald Trump’s trial for his role in the January 6, 2021 Capitol uprising, and a presidential election that promises to be heated, the message is clear: Brute force trumps democracy.
Added to this is another judgment, less spectacular this time, but whose effects shake the very foundations of the institutions. The Court has in fact invalidated the judgment Chevronwhich gave the administrative bodies responsible for applying laws the task of interpreting them, based on their expertise. The courts thus prioritized the interpretation of the standards provided by administrative entities — which is absolutely desirable in technical areas, such as environmental or drug regulations. This deference is over: from now on, the courts will be empowered to decide on conflicts of standards, following the judge’s intuition alone.
This opens the door wide to contestation, by companies with an interest, of any regulation put in place to protect the public, in various areas: what citizens eat, what is spread on arable land, the drugs that are on the shelves (or that are banned — think of the abortion pill), the emissions linked to industrial activities… Gone is the independence of the bodies responsible for ensuring the application of laws, gone is the primacy of scientific expertise.
Individual freedoms in peril, omnipotent courts, a presidential seat above the law, palpable social discontent, a contested democratic process, an outgoing president barely capable of formulating clear ideas, and a former president found guilty of a litany of criminal charges ready to regain power, even if it means doing so by force… The American republic seems to be dissolving before our eyes. There is reason to worry about what comes next.