What The Draft Of The US Supreme Court Says About The Right To Abortion And What It Would Mean For Women In The Country

Almost half a century after the ruling of the US Supreme Court that enshrined abortion as a right, the high court is ready to reverse the historic decision of 1973 Roe v. Wade. The leaking of a draft sentence posted by politician shows that at least five of the nine judges support the change of decision. This is the first leak of its kind in the modern history of the court, which reflects the relevance and controversy that this case arouses.

The court has recognized the authenticity of the document, although it insists that it is only a draft and its president has announced an investigation to discover the origin of the leak. “To the extent that this betrayal of court confidences was intended to undermine the integrity of our operations, it will not succeed.” has assured.


Mississippi, the origin of the conflict

The draft, which is not final, is the Supreme Court’s response to an appeal filed by the state of Mississippi after several courts rejected laws that, in practice, meant the almost total ban on abortion. The first law in question prohibits abortion after 15 weeks of gestation with the sole exception of serious deformities of the fetus or medical emergency. The other law raises a veto to the interruption of pregnancy from the moment the heartbeat is detected, which can occur between the first six and 12 weeks.

“I am committed to making Mississippi the safest place in America for an unborn child and this law will help us achieve that goal,” said Mississippi Governor Phil Bryant at the signing of the 15-week law. the toughest in the country. “They’ll probably sue us in half an hour, but I don’t care,” he joked.

And he was right. The last abortion clinic in Mississippi, also known as the Pink House, sued and, four years later, is in the hands of the Supreme Court. The final decision will be announced in June, which is customary in all cases before the court.

The position of the Supreme in the last 50 years

There is no law in the US that allows abortion at the federal level: what exists are two fundamental decisions of the Supreme Court, Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), which have prohibited vetoing abortion throughout the country until fet viabilityor, that is, when it can live outside the womb, which, according to the Supreme Court, is between 23 and 24 weeks.

Norma McCorvey, known by the pseudonym Jane Roe, sued her district attorney, Henry Wade, because she wanted an abortion but was not allowed by Texas law. The court agreed with him, but Texas appealed to the Supreme Court, which by a decision of seven to two, considered that abortion was a right. Five justices appointed by Republican presidents and two appointed by Democrats supported the decision.

The constitutional right to privacy “is broad enough to include a woman’s decision whether or not to terminate her pregnancy,” the 1973 ruling said.

What do the judges say now?

The issue that the Supreme Court is now studying as a result of the Mississippi appeal is summarized in the following question: “If all the prohibitions of optional abortions before viability are unconstitutional.”

“We consider that [las sentencias] Roe and Casey must be overruled. The Constitution makes no reference to abortion and such right is not implicitly protected in any constitutional provision,” says the draft, written by Judge Samuel Alito. Roe and Casey argued, on the contrary, that abortion was implicit in the right to privacy. “This provision has been used to guarantee some rights that are not mentioned in the Constitution, but these must be ‘deeply rooted in the history and tradition of the nation and ‘implicit in the concept of ordered freedom,'” the judge said, citing another previous court ruling.

“The right to abortion does not fall into this category. Until the latter part of the 20th century, such a right was totally unknown to US law. In fact, when the 14th amendment to the Constitution was passed, three-quarters of the states made abortion a crime at all stages of pregnancy,” he adds.

Some consider that this vision could jeopardize other rights that are not explicitly written in the Constitution and that are also based on the freedom of private life, such as the different rights of homosexual couples and the use of contraceptives, among others, since at the time of its approval they were not “rooted” in the history of the country. However, the draft clarifies that this argument affects only abortion. “Nothing in this opinion should be understood as calling into question non-abortion precedents.”

Now what?

If approved, this decision does not imply the illegalization of abortion in the US, but rather each state would be free to regulate it as they wish.

“[La sentencia] Roe was clearly wrong from the start. His reasoning was exceptionally weak and the decision has had damaging consequences. Far from bringing about a national agreement on abortion, Roe and Casey have inflamed the debate and increased the division”, indicates the draft. “It’s time to heed the Constitution and return the abortion issue to the elected representatives of the people.”

The American Civil Liberties Union (ACLU), which has initiated and supported important court cases has pointed out that if the Supreme Court “issues a majority opinion in line with the leaked draft, the shift in the tectonic plates of abortion rights will be as great as any decision issued by the court in its history.” If it occurs, this change is explained by the three appointments made by former President Trump, since all three support the opinion written by Judge Samuel Alito (appointed by George W. Bush), according to Politician.

President Joe Biden has stated that if the Supreme Court repeals Roe v. WadeIt will be up to elected officials to protect women’s right to choose “and it will be up to voters to elect pro-choice officials this November.” “At the federal level, we will need more senators and a majority in the House of Representatives to pass legislation to codify Roe, which I will work to sign into law.”

What are other states doing?

Mississippi is far from the only state that has attempted to ban abortion despite the Roe and Casey rulings. In the last two years, numerous states have tried to block access to abortion. In 2022 alone, Florida, Arizona and Kentucky have passed laws prohibiting the termination of pregnancy after 15 weeks. The governor of Idaho approved in March a law that has been temporarily blocked by the Supreme Court of the state in which abortion is vetoed after the sixth week except in the case of rape, incest, serious illness or risk to the life of the mother. The governor of Oklahoma, for his part, signed another law that directly prohibits abortion unless it is to save the life of the pregnant person and does not provide exceptions in the case of rape or incest. In Wyoming there is another similar law.

In 2021, Arkansas passed a currently blocked law that only allows abortion in cases where the pregnant person’s life is seriously in danger. Texas also approved an outright ban last year if the Supreme Court overturnedto Roe v. Wade. South Carolina passed another piece of legislation vetoing termination of pregnancy from the time the fetal heartbeat is detected. Other states have passed similar laws or regulations whose objective in practice is to block access to abortion without having to prohibit it explicitly.

“Shortly after the passage of the law in Texas and other laws restricting women’s reproductive rights, I directed my Gender Policy Council and the White House Counsel’s Office to prepare options for an Administration response to the continuing attack on abortion and reproductive rights,” the president said.



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