The United States Supreme Court had a date with history, Wednesday 1er December. By examining a Mississippi law banning abortion beyond fifteen weeks, its nine judges also weighed in on one of its most emblematic post-war texts, dating from 1973: the decision Roe vs. Wade, which established a constitutional right of women to dispose of their bodies and to have an abortion.
Now dominated by the conservatives (six judges against three), the Court seemed to lean, in its deliberations, in favor of a revision of this law.
A complete abandonment would be dramatic, say women’s rights defenders. According to them, such a decision – not expected for months – would highlight the unprecedented politicization of the country’s highest judicial institution. “Will this institution survive the stench that would be created in public perception by the idea that the Constitution and its reading are only political acts?” warned liberal judge Sonia Sotomayor. If people believe that everything is political, how are we going to survive? Will this Court survive? “
In 1973, the Supreme Court made abortion a constitutional right, in the name of the right to privacy. Roe vs. Wade believed that States could not alone decide on such a ban before the fetus was viable. Today, in medical terms, this means that abortion is allowed until about the 23rd week of pregnancy. Roe vs. Wade was consolidated in 1992, with a new decision, Planned Parenthood vs. Casey. She considered that laws penalizing or restricting abortion should not create or lead to a pregnant woman “Excessive load” (undue burden).
Mississippi law, passed in 2018 by a Republican majority in the local assembly, has never been enforced, due to legal challenges. It provides for a ban on abortion beyond fifteen weeks, except for medical emergencies. According to official data, more than 93% of abortions in this state were performed, in 2018, before fourteen weeks of pregnancy, but cases beyond this time are often the most dramatic, in social and medical terms.
The designers of this legislation are not focused on this deadline. They see the text as a sort of Trojan horse, which can potentially destroy Roe vs. Wade, taking advantage of the new conservative majority in the Supreme Court, consolidated under Donald Trump. If this were the case, believes the Guttmacher Institute, a reference on this subject, twenty-one states could immediately implement a complete ban on the procedure, or even radical restrictions. Of these, nine still have legislation prior to 1973, which was subsequently frozen, while twelve others have adopted texts which have been automatically suspended in recent years.
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