In the aftermath of the appointment of Justice Ketanji Brown Jackson, the first black woman to sit on the Supreme Court of the United States, it is possible to believe that American political institutions are moving towards greater representation while maintaining a balance between progressive, moderate and conservative forces.
Posted on March 6
However, if you look closely, a minority group occupies more and more space within the institutional landscape of the United States: religious conservatives have exercised, for the last decade, a disproportionate influence on issues related to reproductive justice and more specifically to access to abortion.
The radicalization of the Republican Party
Within the Republican Party, the injunction to take a stand against abortion is increasingly strong. If, in 1988, elected Republican women were able to found an organization within the party itself, called the Republican Majority for Choice, the objective of which was to preserve legal access to abortion, this organization definitively ceased its activities in 2018. In an open letter published in the New York Times announcing its closure, the two co-presidents denounced the undue influence of moral conservatives on the party as well as the extremism of their demands.
Since 2011, the Republican Party has controlled the majority of state governments. Over the past decade, Republican states have passed almost as many laws restricting access to abortion as in the previous 40 years.
Indeed, 44% of the 1,336 laws adopted since 1973 (the year abortion was legalized) have been adopted since 2011. The trend is far from slowing down; in 2021, a record number of 108 laws have been adopted with this aim.
The courts: the last bastion against ideologies?
These laws are more and more often challenged before the judicial institutions. So much so that the abortion rights movement is diverted from its primary goals and devotes a significant portion of its resources to disputes in the courts.
This is particularly the case in Mississippi, where, after the adoption of a law prohibiting abortion beyond 15 weeks, its constitutionality was called into question. It is currently being studied by the Supreme Court of the United States. The decision, which will be handed down in June 2022, could influence the midterm election campaign scheduled for next fall. More extreme still, the Heartbeat Bill of Texas prohibits abortions beyond six weeks and provides a system of rewards for people who report violators of the law. Despite numerous attempts to challenge it before the courts, this law directly violating existing case law on the right and access to abortion (including Roe v. wade and Casey v. Planned Parenthood) is still in effect and has resulted in a decrease of more than 60% in the number of proceedings in this State.
A recent study reveals that the Trump presidency has had visible consequences on the level of partisanship in federal courts. The authors of the study point to two partisan practices of judges which have seen a spectacular peak between 2018 and 2020, more than during any other period in the past 60 years: the supporter split describes a situation where the judges composing a panel render a decision in a divided manner, according to their partisan affiliation, and in the case of a supporter reversala court reverses a decision of a lower court and the new verdict is made by a panel of judges ideologically opposed to the judges of the lower court.
This “team mentality,” referred to by the authors, has abortion advocates fearing the worst given the record number of judges appointed by the Trump administration.
The growing concern of activists for the right to abortion
If the appointment of Brown Jackson to the Supreme Court represents a strong symbol for inclusion and diversity within political institutions, International Women’s Rights Day will probably be tinged with concern again this year among our American neighbors. The Democrats may have control of the presidency and Congress, but the fight for the right and access to abortion is played out elsewhere. Religious conservatives, strong in their organization and their mobilization within the Republican Party, have understood this for a long time.
A few days ago, Marianne, an activist from San Diego, told me of her pessimism regarding the maintenance of the right to abortion. According to her, the future of the struggle lies in the indignation and anger of individuals, on the margins of institutions. She concluded our exchange by saying that no matter what the next few months bring, American women will fight back: “We will fight back! »
Closer than you think
If it is imprudent to compare the American and Canadian contexts in terms of public policies in reproductive health, it remains interesting to note a certain trend, namely an attempt to institutionalize the discourses and postures against access to abortion. Strengthened by their presence within the Conservative Party of Canada, the religious conservatives contributed to producing a certain dissension, election after election, within the party. While the results are not the same as in the United States today, the fact remains that in 2018, 61% of Canadians agreed with the idea that the government should enact laws to “regulate” access to abortion in the country.
For further
Read the book Abortion and the Law in America: Roe v. Wade to the Presentby Mary Ziegler