This thunderclap was expected, but it does not leave America less in shock. This Friday, the Supreme Court took the United States back 50 years by overturning Roe v. Wade who had guaranteed the right to abortion throughout the country. From now on, each American state will be free to authorize or prohibit abortion, as was the case before 1973.
The United States cut in half
This decision will have major and immediate consequences. In total, 13 conservative American states (Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North and South Dakota, Oklahoma, Tennessee, Texas, Utah and Wyoming) had adopted “trigger laws”, “automatic” laws allowing them to make any abortion illegal as soon as the decision is announced or within 30 days thereafter. With the only exceptions provided for, a risk to the health of the mother and, for a handful, in the event of rape or incest.
A dozen other states are expected to follow with either an outright ban, or a reduced legal time frame for fetal viability (about 22 weeks) to six or eight weeks. In total, abortion should be prohibited or extremely restricted in more than half of the 50 American states.
In some cities in the South of the United States, women wishing to terminate a pregnancy may have to travel more than 1,000 km to get to a clinic in a neighboring state where abortion is legal. “The first penalized would be the poorest classes, in which we find a disproportionate share of women of color”, estimates Michele BratcherGoodwinprofessor of law at the University of California at Irvine, author of The Police of the Womb: Invisible Women and the Criminalization of Maternity. And the obstacles are expected to multiply: some conservative states have already banned abortion pills sent by post, and others want to criminalize an abortion performed in another state – complex legal points that the Supreme Court could have to arbitrate.
Democrats powerless in the Senate
Stunned after the leak of the draft decision, Joe Biden and Nancy Pelosi have promised to do everything to legislate. But the Democrats have never managed to codify the right to abortion in law, and they are far from having the necessary votes to be able to do so. In the Senate, it takes a super majority of 60 votes out of 100 to overcome parliamentary obstruction (“fillibuster”), and the Democrats have only 50 elected. Who could, in theory, vote with a simple majority to end the filibuster. But at least two centrist Democrats, Joe Manchin and Kyrsten Sinema, oppose it, judging this safeguard necessary to avoid the excesses of one camp or the other.
Joe Biden should logically try to mobilize voters for the midterms (legislative) of November. But with less than 40% of Americans satisfied, the White House tenant risks dragging his troops into a crushing defeat. Unless the trend reverses, the Democrats should logically lose control of the House, and perhaps even the Senate. Emboldened, Republicans could then try to pass a law limiting a little more the right to abortion at the national level. However, they too would have to come up against the bar of the 60 senators needed for any change.