Anti-abortion protesters outside the United States Supreme Court on October 17, 2020 in Washington. – SOPA Images / SIPA
This was the scenario feared by defenders of abortion rights. The Supreme Court of the United States agreed on Monday to consider a law rebutted in Mississippi, which wants to prohibit almost all abortions from the 15th week of pregnancy. Without completely reverting to the right to abort, the body controlled by a large conservative majority could thus pave the way for other States also wishing to restrict abortions. The nine judges, including three appointed by Donald Trump, will examine the case from October, with a decision expected by June 2022.
“The alarms are ringing loudly in the face of this threat,” immediately commented Nancy Northup, president of the Center for Reproductive Rights which has taken legal action against the Mississippi law. “The Supreme Court has just accepted to study a text which, without a doubt, violates nearly 50 years of its own decisions”, she underlined.
A constitutional right that divides
The High Court recognized a constitutional right to abortion in 1973 in a landmark judgment entitled “Roe v. Wade ”. She then clarified that women can abort as long as the fetus is “not viable”, which corresponds to about 22 weeks of pregnancy. “Once sustainability is no longer the limit, it is not clear what becomes so. Many women do not know they are pregnant for six or eight weeks, so this would dramatically reduce the window during which abortions are legal, ”said constitutional law professor Steve Vladeck on Twitter.
That may not seem like a huge deal, but (1) once viability isn’t the inflection point, it’s not clear what is; and (2) many women do not find out that they’re pregnant until 6-8 weeks into a pregnancy, so this would dramatically compress the window in which abortions are legal.
– Steve Vladeck (@steve_vladeck) May 17, 2021
Part of the population, especially in religious circles, remains fiercely opposed to voluntary terminations of pregnancy (abortion) and conservative states, particularly in the south and center of the country, have over time adopted laws to restrict women’s access to these interventions. But laws that directly contradict the framework set by the Supreme Court, including those prohibiting all abortions or limiting abortions to the first weeks of pregnancy, have so far been systematically struck down by the courts.
The Mississippi law, which dates from 2018, was thus blocked at first instance and then on appeal. Its authors then decided to lodge an appeal with the temple of Law. The Supreme Court could have refused to take it up, as it does in the vast majority of cases, which would have validated the previous decisions. By agreeing to examine the appeal, it suggests that it could influence them.
“Court compromised”
Her choice was not motivated, in accordance with customary practice, but she indicated that she wanted to confine herself to a legal question: “Are all the bans on abortion before viability (of the fetus) contrary to the Constitution?” His decision was applauded by opponents of abortion. “This is a historic opportunity for the Supreme Court to recognize the right of states to protect unborn children from the horrors of painful and late abortions,” said Marjorie Dannenfelser, president of the Susan B. Anthony List group.
Very worried, the defenders of the right of women to dispose of their bodies have accused them of instrumentalizing the new composition of the Court. “Anti-abortion policies have abused their powers for this precise moment: to give the opportunity to a compromised Supreme Court to take away our right to abortion,” lamented Alexis McGill Johnson, president of Planned Parenthood, which manages numerous clinics performing abortions.
During his tenure, Donald Trump brought three magistrates to the Supreme Court, two of whom replaced justices protecting women’s rights: the conservative Brett Kavanaugh succeeded in 2018 to the moderate Anthony Kennedy, then Amy Coney Barrett, a fervent Catholic opposed to abortion, replaced feminist champion Ruth Bader Ginsburg who died in September 2020.
Their arrival at the Court galvanized opponents of abortion and States have multiplied restrictive texts in the hope of providing it with an opportunity to take up the subject again. According to Planned Parenthood, more than 500 abortion restrictions have been enacted since the start of the year.
According to experts, it is likely that the high court, which will deliver its decision in 2022, will not completely invalidate the Roe v. Wade but decreases its scope, by providing more and more latitude to States to prohibit abortions, which risks increasing territorial disparities in the country.