Abortion rights and access potentially set to be heavily impacted by upcoming U.S. Supreme Court ruling in case Dobbs v. Jackson Women’s Health Organization. “”
Posted yesterday at 1:00 p.m.
This document, which has been circulating since last Monday evening and which has fueled many discussions both in Quebec and south of the border, represents the culmination of 50 years of struggle against reproductive rights. Moreover, the arguments invoked cast doubt on the invalidation of other acquired rights.
Who is Samuel Alito?
Samuel Alito, one of nine justices serving on the United States Supreme Court, was appointed by President George W. Bush more than 16 years ago. This judge, now 72 years old, has long carried the demands of the movement against abortion in his practice.
The current position of this judge is not surprising. Already, in 1991, while sitting on the United States Court of Appeals for the Third Circuit, Alito rendered an opinion against the right and access to abortion in the context of the judgment Planned Parenthood c. Casey.
In the context of this judgment, he defended the idea that a pregnant person wishing to have access to abortion should obtain the authorization of her partner (“ spousal notification “).
In addition to this controversial opinion, Alito also wrote a memo to the Department of Justice in 1985 when he was district attorney for the New Jersey district. As part of this document, the judge gave his opinion on the judgment Thornburgh v. American College of Obstetricians and Gynecologists. This judgment rejected the constitutionality of a state law restricting access to abortion, in particular forcing doctors to disclose information discouraging their patients from resorting to abortion. Alito disagreed with the decision made by the court.
PHOTO ERIN SCHAFF, ASSOCIATED PRESS ARCHIVES
The members of the Supreme Court of the United States, in April 2021. Samuel Alito is the first justice seated on the left.
In addition to giving his opinion, his note supported a strategy comprising political and legal components with the very assumed aim of overthrowing Roe v. wade. At the time, Alito was aware of the slim chances of completely overturning the landmark 1973 ruling, so he detailed the best ways to circumvent Roe and “mitigate its effects” through the passage of multiple state laws. restricting access to services. He asserted that this way of doing things would reduce “the disadvantages that would accompany the major effort to overthrow Roe” in addition to having the advantage of not having to recognize its legal legitimacy. It must be recognized that the judge’s strategy was heard and applied. After the adoption of more than 1300 state laws restricting access to abortion since 1973, it is now more than likely that the Supreme Court will completely overturn the provisions legalizing abortion throughout the United States.
The Supreme Court at the service of conservative ideology
By the end of Donald Trump’s presidency, analysts of American politics knew that the nominations of Republican Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett to the Supreme Court would have years-long consequences.
In the draft decision that has been circulating for a few days, the majority judges (Republicans) hint at the depth of the changes that their presence at the highest legal body in the country could bring about.
Indeed, among the arguments mobilized to support the overthrow of Roe v. wadethey point out that abortion is not a right enumerated in the Constitution.
In order to assess the constitutionality of this right not enumerated in the Constitution, the judges used the Glucksberg test which stipulates that to be constitutional, a right must meet one of the following two conditions: 1. be deeply rooted in the history and tradition of the nation or 2. be implicit in the very concept of freedom. According to the interpretation of the majority justices, the right to abortion fails the Glucksberg test, while abortion has only been prohibited (partially or entirely) for a century in the entire history of the United States.
Currently, many activists and analysts fear the snowball effect of the Supreme Court’s potential decision. If the right to abortion has failed the Glucksberg test, what will happen to the right to gay marriage, the rights recently acquired by trans people, access to contraception and its coverage, as well as than other rights not enumerated in the Constitution, the adoption of which depends on the evolution of the mores of American society. This way of interpreting the law scares marginalized communities, especially in republican states.