It is a decision deeply contrary to the history of the United States by a court deeply disconnected from American society. In this sense, the judgment of the United States Supreme Court in Dobbs v. Jackson Women’s Health Organization is a huge throwback.
Posted yesterday at 6:00 a.m.
The history of the United States is largely one of rights that have been dearly won, often through the use of courts that have not hesitated to recognize historical errors, particularly in the area of racial segregation.
Despite some mistakes, the pattern of American history has been to expand rights, not restrict them. For the first time in American history, a right that had been recognized by the courts for half a century was suddenly taken away. A fundamental right for half of the population from whom control of their own body, health and private life is taken away.
In this sense, the Supreme Court has clearly disconnected from American society, which is much less extreme than the judges on this issue. Even the majority of those who oppose abortion still consider that there must be exceptions and circumstances where it should be permitted.
More broadly, this judgment is the result of the instrumentalization of the courts by the most conservative elements of American society, with the complicity of the Republican Party, whose shift to the right no longer needs to be demonstrated. This has led to an unprecedented politicization of the Supreme Court and the judicial appointment system.
It should be noted here that if the Supreme Court has its current composition, it is because the Republicans in Congress intervened heavily in the process.
So when conservative judge Antonin Scalia died in February 2016, with almost a year left in Barack Obama’s mandate, the Republican majority in the Senate refused to allow a vote on the confirmation of the candidate he had chosen.
But when ultra-liberal Justice Ruth Bader Ginsburg died in September 2020, the Senate confirmed President Trump’s nominee, Justice Amy Coney Barrett, in just 30 days and in the midst of an election campaign. It was this nomination that gave an anti-abortion majority to the Supreme Court.
But the issue of abortion has only dominated partisan politics in the United States for a few years. Thus, the decision Roe v. Wade, which had established this right to abortion in 1973, had been written by Judge Harry Blackmun, appointed by Richard Nixon, a Republican President. It had been confirmed by the 1992 Casey judgment, whose co-authors, Justices O’Connor, Kennedy and Souter, had all been appointed by Republican presidents.
For the time being, the Supreme Court has returned the matter to state legislatures, creating a real legal quilt in the United States. Already 13 states had a law prohibiting abortion which was to come into effect upon the Supreme Court’s decision. Others should follow.
But several states also have laws that prohibit helping a woman obtain an abortion. For example, helping her get to a state where abortion is legal. But that causes other problems: What about abortion pills that have been on the market legally for 20 years? What about insurance policies that cover abortions? Is the confidentiality of the relationship between a patient and her doctor affected?
It cannot be said that the Court’s decision has provided the great clarity that it considers to be necessary in such a case.
Similarly, one may wonder whether the Court judged according to the law or the political aspect of the case. Thus, it is ironic that the judges decided to send the issue of abortion to the state legislatures, when the day before they had struck down a 100-year-old New York State law on the right to carry a gun in public.
But what is most disturbing in Friday’s decision is the indication given by Justice Clarence Thomas, the dean of the court, who says that applying the same principles could now invalidate the marriage of couples of same sex or the right to contraception.
This is partly because, according to the majority justices, since abortion is not mentioned in the Constitution and is not part of American history and traditions, it cannot be a right. But as the three dissenting judges say, this means that we could then revoke a right to privacy – which they believe is protected by the Constitution – that is “to make one’s own decisions on the most personal questions”.
Definitely, this very political Supreme Court has just entered very hazardous and even more slippery territory.