The Supreme Court of the United States, profoundly overhauled by Donald Trump, meets Monday to consider a law that for two months has drastically limited the right of Texans to terminate their pregnancy and represents the hardest blow to the right to abortion in almost 50 years.
Reflection of the immense stakes of the file, pro and anti-abortion demonstrators began to meet in the early morning in front of the temple of law, which has six conservative magistrates out of nine, including three appointed, by the former Republican president.
“Abortion is essential” against “let their hearts beat”, each group faced each other, armed with placards and banners, under the watchful eye of the police.
The influential court must hear two separate appeals against a law in Texas which prohibits abortion as soon as the embryo’s heartbeat is noticeable, i.e. around six weeks of pregnancy, even in cases of incest or rape.
This threshold comes in much earlier than the limit set by the Supreme Court itself. After recognizing in 1973 the right of women to abort, the High Court clarified in 1992 that it applied as long as the fetus is not viable outside the womb, or around 22 weeks of pregnancy.
These historic judgments, although having authority over the whole country, still do not pass with a part of the population – especially on the right and in religious circles.
To satisfy their voters, local Republican officials therefore regularly adopt laws which openly flout the jurisprudence of the high court. But so far, the courts have always prevented their implementation.
“Denial”
Texas, a real laboratory of the most conservative ideas, has however devised a new device that complicates the intervention of the federal justice.
Its law indeed entrusts citizens “exclusively” with the task of enforcing this prohibition, by encouraging them to take civil action against people and organizations which help women to have an abortion beyond six weeks.
In case of victory before the judge, these citizens will obtain 10,000 dollars in compensation, the law provides. Its detractors see it as a “bonus for denouncing”.
Seized urgently for the first time, the Supreme Court took refuge behind these “new questions of procedure” to refuse, by a narrow majority, to block the entry into force of the law on September 1.
His inaction, seen as a sign of the influence of the magistrates appointed by Donald Trump, had been strongly criticized on the left, Democratic President Joe Biden lambasting a decision that creates “chaos” and “insults the rule of law”.
Since then, the legal battle has intensified with the intervention of the federal government and contradictory decisions of a trial judge and a court of appeal.
On October 22, the Supreme Court finally decided to jump into the fray and act quickly: it planned a hearing ten days later, a speed that it had not shown since its intervention to award the contested presidential election. from 2000 to George W. Bush.
Unlikely ally
On Monday, the Nine Wise Men will hear the arguments of the parties. They should not address the right to abortion, only the legal mechanism created by Texas.
So that it does not lose sight of the enormous human stakes of the case, the powerful organization of Family Planning sent them a compilation of testimonies collected in its Texas clinics.
She quotes in particular a 12-year-old pregnant girl, whose mother cannot afford to travel out of state, who lets go during the consultation: “Mom, it was an accident, why do they want me to do it? keep ? “
The Supreme Court could render its decision fairly quickly.
Even if the conservative magistrates are in the majority, defenders of the right to abortion display a cautious optimism, because the Texan mechanism arouses criticism even on the right.
They have indeed received the support of unlikely allies: in an argument sent to the Court, the Firearms Policy Coalition, which defends the right to carry weapons, stressed that the mechanism chosen by Texas could be adopted in other states to attack other rights.
Whatever the outcome of this battle, the war will not be over: the Supreme Court is due to examine on December 1 a Mississippi law which prohibits abortion after 15 weeks of pregnancy. For observers, it could take advantage of this more classic text to begin to unravel its case law, by returning at least to the criterion of “fetal viability”.