Right now, no one knows whether the US Supreme Court will actually overturn the 50-year-old universal right to abortion. Oral negotiations like the one that took place on Wednesday before the Supreme Court are at best a rough gauge of the mood of the nine judges. One can deduce from their statements how they see a topic in general. What judgment they then come to is another question.
However, the speculative conclusions that constitutional lawyers drew after Wednesday’s hearing were enough to shake American politics. A majority of the Supreme Court justices “seem to be inclined” to want to restrict abortion law, it was said with caution. But the vague prospect that this could happen when the court pronounces its verdict in a few months’ time is fueling the cultural war over abortions that has been raging for decades. The fact that the new Congress will be elected in November 2022 does not calm the situation.
Wednesday’s trial was about a Mississippi state law prohibiting abortions after the 15th week. It thus clearly contradicts a principle judgment of the Supreme Court of 1973, known as “Roe v Wade”, according to which every woman has the right to have an abortion up to about the 24th week. If the Supreme Court followed its earlier jurisprudence, it would have to overturn the Mississippi law.
But whether the court will do that is doubtful. Of the nine judges, five to six now belong to the conservative wing. And one goal that American Conservatives have been pursuing for decades has been to overturn Roe v Wade and abolish the universal, nationwide right to an abortion. Since this right is only based on one judgment, it can be nullified by another judgment.
In Mississippi or Texas, legal interference would be made much more difficult
In this case, the individual states could then again decide whether women are allowed to have abortions. In Republican-ruled areas like Mississippi or Texas, where an even more drastic drive law has been passed, this could mean that access to a safe, legal abortion is at least very difficult, if not completely denied, for millions of women.
It is unclear whether the court will go so far as to formally revoke Roe v Wade. However, what the judges’ questions reveal, in the opinion of experts, is a willingness to accept the 15-week period stipulated in Mississippi law instead of the currently applicable 24-week period for an abortion. “Why shouldn’t 15 weeks be appropriate?” Asked, for example, the presiding judge John Roberts, a conservative but far from the most conservative member of the court. If he questions Roe v Wade so openly, so the suspicion of observers, then there is probably no majority among the judges to uphold the 1973 judgment.
For the Democrats in power in Washington, it would be a heavy defeat, on the one hand, if the Supreme Court should erode or revise Roe v Wade. For the party, it is part of its identity to defend the right to an abortion. On the other hand, a verdict against Roe v Wade would be a powerful motivational tool in a Congressional election campaign – perhaps even the lifebuoy that will save the Democrats from ruin that polls are predicting for next November.
Democrats can learn from the Republicans how to win elections with abortion. The party knows that it is easier to mobilize voters against something than for something. She has long used her fight against Roe v Wade with great success to get her supporters to the polls: Vote us so that we can appoint conservative judges to the Supreme Court who ban abortions – this has been the Republican message for decades.
Republican success could turn against them
If Roe v Wade no longer existed, it would be a triumph for the Republicans. At the same time, however, they would lose a tried and tested election campaign issue, while the Democrats would gain a new, perhaps similarly effective issue – resistance against the aggressive, reactionary conservatives who want to abolish hard-won women’s rights and ban abortions even in cases of incest or rape.
Democratic politicians and left activists have already announced that they want to go into battle with these argumentative clubs. Your chances of winning are not bad: a majority of Americans think Roe v Wade is right and good. And especially the educated, moderate voters in the suburbs, which are so important in elections, are likely to be outraged if half a century of feminist progress is turned back by a judge’s verdict.