From the outside, it is a small, soulless building. At the screened windows. With a concrete screen hiding its entrance. At the corner of South Main and Houston streets in McAllen, Whole Women’s Health is the last clinic in the Rio Grande Valley, South Texas. On Mondays and Tuesdays, when the doctor (who resides for security reasons out of state) is on site, they are always there, facing the entrance. To brandish plastic dolls. Trying to convince women walking towards the clinic to stop. To harangue them through the megaphone. To call them murderers, sinners, criminals if they continue to advance.
To the point where volunteers often have to escort these women… because they are afraid. Fear of these anti-choice activists who insult them. Fear of the stigma of their choice. Fear of not being able to obtain a voluntary termination of pregnancy (abortion) because they may have already exceeded the (so short) admissible gestational age of six weeks… Fear, because the termination of a pregnancy has no nothing of a fishing trip.
In this context, the leaked draft Supreme Court decision heralds a triple earthquake.
The first is constitutional. Alexander Hamilton, one of the Founding Fathers of the United States, saw in the Supreme Court, without sword or portfolio, “the least dangerous of all branches”. It has long been, insofar as it followed, explains the political scientist Robert A. Dahl, on a slower tempo, the evolutions of society. In doing so, its foundation in the constitutional balance rested, according to Justice Robert H. Jackson (one of the outstanding judges in the history of the Supreme Court), on its ability to articulate the realities of its time in the legal space. This is no longer the case.
Indeed, although a majority of Americans aspire to maintain Roe v. wade (and consistently over the years, according to the Kaiser Family Foundation, which regularly polls Americans on this subject), Judge Alito positions the Court against the tide of societal evolution, and on a questionable legal basis. To the point of making it, in the words of David A. Kaplan, “the most dangerous of the branches”. Thus, while the Chief Justice, John Roberts, has tried (in vain) to keep it at a distance from the turmoil of politics, the high court could sink into deep divisions and undermine its legitimacy and its ability to maintain justice. constitutional edifice, especially when the other powers are going off the rails.
The second earthquake is linked to the redefinition of women’s reproductive health. As things stand, effective access to abortion is already based on quilt geography: according to the Guttmacher Institute, 58% of American women of childbearing age live in so-called abortion-unfriendly states. A situation that the abandonment of Roe v. wade would accentuate since the right to abortion would be suppressed in more than half of the American states.
In this context, it would be fooling ourselves to imagine that telemedicine (which 19 States prohibit in this area) and the progress of medical abortion would send the use of rusty coat hangers and Lysol back to a bygone era: that would be to assume that all women have equal knowledge of networks, drugs, organizations, and that they have the material means (financial, communication) to access them. Which is far from the case, as researchers from the University of Texas at Austin show in a publication by theAmerican Journal of Obstetrics and Gynecology of August 2020.
Thus, in a post-Roe era, different countries will coexist in terms of reproductive health: that of the liberal coastal states, opposed to that of the central states with restrictive policies in terms of sex education, contraception, abortion, social policies . The country of women who will have the capacity (economic in particular) to move to lenient States – a reality that Christabelle Sethna and Gayle Davis labeled in 2019 with the expression “abortion refugees” -, distinct from that where women will have to have pregnancies against their will. With the risks that entails, because this mobility can prove to be vital: in fact, research by Amanda Stevenson published on SocArXiv envisages a 21% increase in maternal mortality (33% for African-American women) in the event of abandonment of Roe v. wade. Which is far from being anecdotal, because already today, in the United States, more people die than anywhere else in the West of being a woman of childbearing age.
The third earthquake is due to the perniciousness of this decision which will alter the global edifice of freedoms and human rights. In 1973, the Court based its decision on the notion that certain life choices are matters of privacy. But it was not the first time. As Professor Kimberly Wehle explains, this space of freedom free from excessive government intrusions was identified by the Court in 1923: it held that states could not encroach excessively on the educational choices of parents (on the ban on the teaching of German in private schools in Nebraska).
The Supreme Court took up this process to establish the right of a married couple to contraception in 1965, to interracial marriages in 1967, the right to choose one’s sexual partner without fear of criminal prosecution in 2003, the right to marriage between persons of same sex in 2015. However, Judge Alito invalidates the argument in 2022: for him, the right to abortion has “no historical anchoring” constitutional. But it is clear that, in this case, the rest of the edifice of rights has no more.
Therefore, a world after Roe v. wade will outline a heterogeneous legal geography, the scope of which goes beyond the sole right to abortion. A world where States will be able to determine the conditions of sexual life, reproduction and education. Where the rights of minorities (sexual, racial, economic) will vary with their location and their (im)mobility. A world where any miscarriage can be criminally investigated. Where even the menstrual cycle will no longer be a matter of private life. A world where McAllen’s clinic will have disappeared.