There has been a firestorm in the US over a leaked memo from the Supreme Court which appears to suggest that SCOTUS may well issue a decision that will effectively overturn Roe vs Wade, and has since been confirmed as genuine. Roe vs Wade, the case from 1973, means that all states must allow abortion in some form. This case opens the door for states to pass draconian legislation, and in the case of Michigan would mean that they would revert to a 1931 law that makes no exception for rape, incest, or medical emergencies. Other laws, such as Texas's 2021 'Heartbeat Law', which banned abortion after 6 weeks and criminalised those who assist women seeking terminations.
The Supreme Court of the United States.
The rationale behind Alito's decision in the case is that abortion is not mentioned in the constitution. This fits in with the dominant thread of conservative justices in recent times of strict constructionism, or textualism. This judicial ideology, simply put, means that decisions should be based on the specific text of the constitution, as it is written. For example, Antonin Scalia said that although he was personally against flag burning as a form of protest, and would have allowed it as a legislator, it also should be allowed under the constitution due to the clear wording of the 1st Amendment, where it would be considered protected speech.
So, abortion, the right to which is based on a small aspect of the 14th Amendment (that of the right to privacy), is now under threat in the biggest of all Western democracies. The removal of the precedent set in Roe, which has been chipped away at for years, means that the principle of states' rights is being pushed by conservative justices and legislators. This is certainly consistent, and is one of the key tenets of modern Republican thought. However, it is also true to say that there are a range of issues where conservatives have been less keen on states' rights, such as in cases of marijuana legalisation or assisted dying (euthanasia). Many are now asking, given that other rights such as same sex marriage and aspects of racial equality such as integrated schooling are based on the 14th Amendment, could Supreme Court action on these be forthcoming?
Sign held by a protester. Obergefell refers to Obergefell vs Hodges, and Lawrence refers to Lawrence vs Texas, which struct down restrictions on male homosexual sexual relations.
In fact, John Hart Ely, the constitutional scholar, went so far as to say that strict constructionism wasn't really a philosphy of law, but was really about reaching popular political decisions for a specific party. A clear example of this is the famous Supreme Court case, FEC vs Citizens United, struck down decades of electoral law, in favour of virtually uninhibited donations in politics. Therefore, far from preserving the text of the constitution, and applying it in a limited fashion, such justices are truly conservative activists.
The justices who look set to strike down Roe have also been appointed in a hyperpartisan fashion. Three were appointed by Trump, who won with 3 million fewer votes, and two by Bush, whose first win was also won with a minority of the popular vote. Additionally, Senate Republicans have certainly pushed the approval process to its very limit, in the form of holding up the approval of Merrick Garland in 2016, and pushing through Amy Coney Barratt in 2020. Now, this long game of Republican legislators looks set to pay off in a way that is devastating for women in America and around the world.
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