Posted on June 28, 2022
Like a clap of thunder in a summer sky in the United States, the emblematic judgment that made abortion a “constitutional right” was repealed. Roe v. Wade (1973), later affirmed in Planned Parenthood v. Casey (1992), has just had his conclusions invalidated by Dobbs v. Jackson Women’s Health Organization. For judges, it is “to the people and elected representatives” to frame the practice of abortion, thus returning the ball to the Politician.
To assert that abortion is not protected by the Constitution amounts to giving the laws of the Member States of the Union the right to judge its legality and its scope without the federal government having a say in the topic. It is therefore a decision which, in addition to directly affecting the question of abortion, redraws the limits of the judicial authority and the political rights of the States within American federalism.
The legal culture war
For the progressive camp, it is an unprecedented snub and the harbinger of a greater questioning of case law affecting the rights of women and minorities. For the Conservatives, this is a victory they have been waiting for for almost 50 years now. Only the extreme political polarization between Democrats and Republicans will not end with the repeal of Roe, quite the contrary.
As the jurist observes Ilya Somin for Reasonthe culture war has only changed gears:
Just as most conservatives have never accepted the legitimacy of Roe v. Wade and waged a fifty-year struggle to overthrow him, the vast majority of progressives are unlikely to accept the Dobbs ruling and will be happy to overturn him at the first chance. This is evident from the reaction of the liberal left to the Dobbs ruling since it was issued, as well as from the evolution of the abortion issue over the past decades. In this constitutional debate, neither side is prepared to give much, if any, credence to the legitimacy of the other.
Without going into technical details, the legal basis of Roe v. Wade has always drawn criticism from both sides of the political spectrum. For conservatives, it testified to the “leftist” political drift of the United States Supreme Court. Based on a generous – and particularly vague – interpretation of the 14e and 9e amendments to the Constitution, the judges would have deduced the right to abortion from a broader right to privacy (privacy), itself enshrined in the Griswold judgment of 1965.
What constitutional right to abortion?
For a conservative jurist like Robert Bork, this sidesteps the central question of the presence of law in the constitutional text, which amounts to giving the court the power to create new rights instead of institutions elected directly by the people. American. The moral question of abortion is therefore coupled with a question relating to the limitation of the powers of the Court, accused of wanting to impose a government of judges of progressive inspiration instead of the one, more legitimate from the democratic point of view , assemblies.
According to Christopher Caldwell, for those who make legal abortion an indispensable component of modern freedom, the degree of legal protection offered by the Court was particularly weak. The legal justification of the Court was only the opinion of a judge, the basis of which could be reversed at any time. The only way to “secure” such a right could only go through politics, that is to say, to create a particularly virulent pro-choice camp capable of defending the decision. as if it came from the legislative branch.
Roe’s repeal did more than inflame the debate between progressives and conservatives. American liberals and libertarians are equally divided on the fundamental issue of abortion. It is possible to have an overview in the columns of Reasonthe flagship magazine of libertarianism in the United States.
On the one hand, Liz Wolfe considers this a victory for pro-life libertarians: “Such a move would not end abortion, but it would almost certainly reduce the number of abortions performed each year in the United States. » She adds that contrary to the fears of the Democrats, there is no question of banning abortion: “In Roe and Casey, the Court guaranteed women’s right to abortion and sought to minimize ‘undue burdens’ that might interfere with it. Reversing these rulings would not result in a nationwide ban on abortion, but would refer the matter to state legislatures. The result would be a patchwork of abortion laws, state by state. »
From a pro-choice perspective, Nick Gillespie fears that increased protection of the fetus will lead to increased surveillance of women’s sexuality: “If life does indeed begin at conception, then the state has a duty to protect all zygotes (fertilized eggs), blastocysts (week-old zygotes) and embryos (zygotes implanted in the uterine wall). From a libertarian perspective, the implications of such a change are staggering. This is a recipe not for limited government but for government that must, in the name of protecting life, liberty, and the pursuit of happiness, monitor and track all acts of potential procreation. »
How to get out of the war of position between conservatives and progressives on abortion?
According to Ilya Somin, the United States should seek a broad consensus on the issue as it exists in some European countries:
“The 14-week limits that exist in France and Germany are good examples of this. If American public opinion reaches a similar consensus, few will care about the details of abortion case law, so long as it does not stand in the way of the policies favored by that consensus. Alternatively, legal elites could come to a consensus on constitutional methodology that would clearly resolve the issue of abortion one way or the other. »
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Roe v. Wade: abortion controversy between progressives, conservatives… and libertarians
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