Nearly 50 years ago, the Supreme Court of the United States delivered its historic decision “Roe vs Wade », which in 1973 gave constitutional protection to the right to abortion across the country. However, this right has never been absolute and for 50 years, American women have feared, year after year, to lose what this judgment had allowed, as well as with each new appointment of judge to the Supreme Court and according to elections. For them, this fear has just taken a dark turn.
Because a preliminary version of a judgment on their right to abortion was revealed Monday evening by the American media Politico.
This confirms the result feared by many Americans: if this draft becomes a judgment, “Roe vs Wade » will be overthrown.
However, the judges can still change their minds, and render a judgment different from what has been displayed in the pages put online by Politico. Except that judges appointed by Republican presidents dominate the Supreme Court: there are six Republicans against three Democrats. This judgment of 1973 has been in their sights for a very long time.
The suspense can last for some time: the Court normally has another two months to issue its final — and official — version.
What “Roe vs. Wade” Says
Even since 1973, the right to abortion in the United States has never been absolute and states have always retained certain powers to limit abortions.
” Roe vs. Wade » established that the United States Constitution protects the freedom of a pregnant woman to obtain an abortion, without undue restrictions by the government. Supreme Court decisions have the force of law across the country.
This judgment gave a framework and beacons to the States, indicating to them what they could or could not prohibit in their respective laws.
Those which were the most restrictive were thus immediately invalidated by the judgment of “Roe vs Wade ».
The Supreme Court had based its decision on the “right to privacy” of women and on the general concept of “liberty”, protected by the Constitution.
The highest court in the United States has linked rights to the three trimesters of pregnancy: during the first trimester, states cannot prohibit abortion at all. During the second, limits may be imposed, with the aim of specifically protecting the health of the woman, and during the third, abortion may be prohibited completely, as long as there is room for certain exceptions, for example when required to save the woman’s life or health.
Creative states with their laws
Since the 1970s, states seeking to ban abortion have been creative in crafting their subsequent laws. In the decades that followed Roe vs. Wade »many restrictive laws have been passed, and several have been challenged all the way to the Supreme Court.
This is the case, for example, of a law in Missouri which required the consent of the parents for a minor seeking an abortion or that of the husband. Abortion methods have been banned over the years, and one of the most frequent attacks was that of the stage of pregnancy that allowed the pregnancy to be terminated or not.
Thus, in 1992, another law challenged before the highest American court led to a modification of the 1973 guidelines: from now on, the right to abortion will no longer be linked to the trimesters: it will rather be associated with the viability of the fetus. . In this decision known as “Planned Parenthood vs. Casey », however, the Court reaffirms that the right to abortion is constitutionally protected.
Attacks in the courts aimed at restricting abortion options have continued to this day.
The draft of the judgment that sank
Currently, the case before the Supreme Court is a challenge to a 2018 Mississippi law that prohibits abortions beyond 15 weeks of pregnancy, except in the case of a medical emergency or a detected abnormality in the fetus.
It is the draft of 98 pages of the majority judgment of the Court on this law which sank.
If his final judgment contains the same conclusions, both “Roe vs Wade » and “Planned Parenthood vs Casey” will be invalidated.
“The Constitution contains no mention of abortion and such a right is not protected by any constitutional provision”, writes Judge Samuel Alito.
States would thus have more freedom to legislate in order to restrict or even completely prohibit abortions.
This means that women’s rights in relation to their autonomy and their bodies will vary – even more considerably than before – from state to state.