Power, not reason, is the new motto of this Court. It is with these words that Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor, of the Supreme Court of the United States, begin the conclusion of their dissent in Dobbs v. Jackson Women’s Health Organization, the decision that today rewrites the right to abortion south of the border. A dissent expressed by these three judges “with sorrow – for the Court and even more for the millions of American women who today are losing fundamental constitutional protection” in the face of their colleagues who are tearing Roe v. wade and Planned Parenthood v. Caseythe decisions which, for half a century, had protected the right of women to dispose of their bodies.
” Roe v. Wade Overturned “. A shiver ran through my body when I saw this front page. New York Times, which I was expecting. Just like that, one morning in June, access to abortion for millions of American women was severely undermined, if not permanently abolished. Unsurprisingly, since we have been preparing for this for years, it is mainly poor women, women living in rural areas, black, indigenous, racialized women, without status who will suffer the death of Roe.
So there is shock, but not astonishment. Everything was in place. All that was missing was the seal of the Court to complete a sabotage begun a long time ago. The ideological ground has been brewing for decades, and in November 2016 we knew the dice were cast — no offense to those then issuing vaguely condescending pleas for calm to feminists and reproductive liberty activists who were already on the war footing.
We must also see the context: the decision comes after a particularly dark week at the Supreme Court of the United States. Since Monday, the Court has allowed expanded gun ownership, ordered public funding of religious schools, stripped arrestees and detainees of fundamental protections against self-incrimination. The reversal of Roe appears as the culmination of a movement aimed at realizing the conservative promise of a more violent, more repressive future, based on social control, the war of all against all, obscurantism.
Dobbs does more than fulfill the bleakest prognoses for the future of reproductive freedom in the United States. The text of the decision also announces that the worst is yet to come. First, speaking on behalf of the majority, Judge Samuel Alito reverses Roe and Casey by presenting them as historic errors of interpretation having led to an abusive exercise of judicial power — which it was high time to correct. The right to abortion, he explains, is not inscribed in “the history of the Nation”, even emphasizing that on the contrary, abortion has most often been criminalized, just like the harm caused to unborn children.
Legal considerations aside, the historical demonstration is not lacking in irony, for it says nothing about the history of abortion and everything about the history of control exercised over women’s bodies, in the name of an abstract right. to life and filiation. To assert that abortion is not part of “the history of the Nation” only further erases the eternal history of the sisterhood, of its reproductive knowledge and practices; the history of abortions which have always been practiced, without regard to the law of the fathers. A despised, hidden story, which nevertheless resonates very strongly in the feminist response that is repeated almost everywhere: the ban on abortion is impossible. Only the prohibition of safe abortions is possible.
Judge Clarence Thomas then signs in Dobbs a competing opinion in which he sides with the reasons of the majority, while insisting on one point: the right to abortion recognized in Roe in 1973 marked the beginning of a long series of jurisprudential errors that led, in particular, to the expansion of the rights of LGBTQ+ people and the right to contraception. The first skid of a long series that he calls to correct “at the first opportunity”.
The attack is frontal, transparent, the program is presented bluntly, revealing that in reality, all this has nothing to do with the internal consistency of the law. The law is here only the instrument of a cultural revolution, and the assault is so powerful that it cuts even the desire to nail the beak to the apostles of the little nothing-is-not-for-panic, who repeated to us ad nauseam looking up at the sky that things wouldn’t go that far.
They are also the ones who tell us today that this counter-current, this violent undertow, will stop at the border and that it has nothing to do with us. If, in principle, the law stops at borders, the forces that shape it, not at all. Law is ideology, law is culture, just as our culture is inhabited everywhere by the specter of the rule of law. You can’t see them as two separate things. The law, case law, is never more than a purely positive object and the transmission of principles, of ideas, does not care about jurisdictional barriers. The courts are never the first ground of this contagion and it would be naïve to think that this icy wind will not reach us.