“I am in favor of Roe vs. Wade. And I will continue to support it “. The position taken by Joe Biden in favor of the right to abortion for American women, put at risk by an upcoming ruling by the Supreme Court. Biden’s spokesperson, Jen Psaki, is even more explicit. The Court’s ruling “represents a serious threat“To women’s rights. Beyond the official statements, however, it does not seem that the administration can do much at the moment to avoid a ruling that will limit heavily the right to terminate pregnancy in the United States. And even the feminist groups, which even in recent weeks have mobilized with campaigns, rallies, sit-ins, seem nailed to the same frustrating helplessness.
The future of abortion in the United States is in fact now inextricably linked to the decision of the nine judges of the Supreme Court. And the Court is now firmly in the hands of the judges conservatives – there are six of them, against three liberals – there doesn’t seem to be much doubt about what this decision will be. Donald Trump, in the four years of his presidency, he found himself in an extraordinary and unprecedented position: that of being able to appoint three judges. And his choices – Neil Gorsuch, Brett Kavenaugh, Amy Coney Barrett – have been oriented towards jurists anti-abortion and willing to review, or delete, the Roe vs. Wade, the decision of the Supreme Court that in 1973 legalized abortion in the United States and which for half a century has been the target of furious attacks by religious and conservative groups.
From a legal standpoint, there is no doubt that the law passed in Mississippi in 2018 is in clear contrast to the Roe vs. Wade. Mississippi law sets the limit for abortion by 15 weeks. La Roe vs. Wade and a subsequent ruling by 1992 (Planned Parenthood vs. Casey) instead gave women more time: up to the 28th week (roughly, the time when the fetus can survive on its own outside the womb). Denying this right would have meant, according to Roe and Casey, “placing an undue burden” on a woman’s shoulders. The Mississippi law then halves the time available of women to access abortion. It’s not as radical as another measure recently passed in Texas, which sets the limit at six weeks, but nevertheless strongly reconsiders the right to abortion recognized in the United States for the last fifty years.
The strategy of conservative judges – the judgment is waiting for June – at this point it can be of two types. The first, more moderate, is the one expressed by the President of the Court, John Roberts (nominated by George W. Bush) which would be oriented to support the constitutionality of the Mississippi law without openly disavowing the Roe vs. Wade. “Why is 15 weeks not enough time to decide to have an abortion?” Roberts wondered during the hearing. The other strategy is more radical and involves the cancellation tout court of Roe vs. Wade. “Nowhere in our Constitution is there a right to abortion,” Judge Kavenaugh said. And, faced with the argument that it would be very dangerous for the Court to disavow a sentence of his in the past, another Conservative, Judge Samuel Alito observed: “It has happened so many times in the past that the Court has disavowed previous sentences. For example, on the subject of racial integration ”.
Whether the first or the second strategy prevails among conservatives, the outcome will still be the same. A series of Republican-led states, especially in the South is in the Center, they will vote read possibly still more limiting than that of Mississippi and the right to abortion will be effectively canceled in much of the United States – at least 22 states, it has been calculated. Millions of women will be forced, with considerable psychological and economic costs, to take charge of a long journey to reach those states where abortion will still be available, basically on the coasts East e West (in 15 American states there are laws protecting the right to abortion). The rift between blue and red America, between cities and countryside, between progressives and conservatives, will be evident in the map of states that allow, or do not allow, abortion.
Is this an outcome that reflects the general orientations of the Americans? Not really. A Gallup poll from last June shows that 58 percent of Americans are against the cancellation of the Roe vs. Wade. Then there are different nuances. For example, a search for the Kaiser Family Foundation of 2020 found that 69 percent of Americans are in favor of some limitation to the timing and methods of abortion. Overall, however, the majority of Americans continue to be pro-choice. After all, according to federal data, one in four American women has had an abortion. Strongly limiting or canceling this right would therefore go against the will of the majority and would obviously affect the economically and socially weaker sections of the population, especially black and Hispanic women who often do not have the economic means to travel to clinics in another state.
What most Americans think, however, is not the fear that it could somehow slow down the action of anti-abortion, religious and conservative groups. The strategy implemented in recent decades by these groups is aimed precisely at institutions and regulations. Unlike progressives, who have always looked to bottom-up organization and women’s associations, conservatives have focused on judges and laws. Republican presidents, from Ronald Reagan a Donald Trump, they used their right to appoint federal judges with a tendency to be anti-abortion to the fullest (Reagan appointed 402 judges, a record). At the same time, in the states and cities they controlled, the Republicans approved rules that made it more and more difficult to practice termination of pregnancy: from increasingly stringent limits to the hiring of abortion doctors to the addition of rules that were impossible to apply for clinics that deal with women’s reproductive rights. Only in 2021, over 600 standards have been presented locally to limit abortion. Ninety were approved.
The strategy of republicans and conservatives was therefore top-down, institutional. A religious and conservative vanguard that is not a majority in America has managed to impose its choices. Today the Supreme Court, on the subject of abortion, does not reflect the orientations of the majority of Americans. Federal judges do not represent the majority opinion. But, being the right to abortion regulated by judicial and non-political means, the conservatives, with determination and foresight, have targeted just the judicial institutions. They conquered them and are now celebrating their triumph. From this point of view, what Judge Kavenaugh said during the Court hearing appears to be cruel sarcasm. “The Constitution leaves the burden of a democratic decision on abortion to the people of the States and to Congress”. Kavenaugh knows very well that Congress has failed, for decades, to pass an abortion law. And that in many southern and central states the persistence of a religious and messianic culture has opposed the rights of women. Precisely for this reason it was the Court, in 1973, that intervened. And it is precisely for this reason that religious conservatives have targeted the Court.
What remains to be done at this point for feminist, pro-choice, democratic and progressive groups remains a difficult puzzle. Biden knows he doesn’t have a majority in Congress to pass a law. The future prospects are even bleaker. Republicans are predicted to win in the November 2022 mid-term elections, and if that were the case, passing the law would become a sad mirage. The judicial path, that of blocking in the courts the anti-abortion measures that the various states will begin to implement, appears equally difficult. Conservatives control the Supreme Court and most of the federal courts, especially in the South. It will take decades to change the balance in the Court. A judge is in fact appointed for life by the president and Trump has tried to designate relatively young judges. Even the judicial path, like the political one, appears impracticable.
Social mobilization remains. Outside the Supreme Court, while the judges were discussing the case, hundreds of pro-abortion protesters gathered: ordinary citizens or militants of groups such as VOTEPROCHOICE. On 2 October, in protest against the Texan law that brings an abortion window to six weeks, thousands of women paraded in hundreds of American cities. It was a massive demonstration, showing the concern and urgency that the abortion issue returns to millions of American women. In the United States, however, there are powerful and deeply rooted groups that defend this right: da Planned Parenthood at the National Abortion Federation a Naral at the National Organization for Women. However, it is likely that the outcome of these demonstrations will end up limiting, and not blocking, the decision of the conservative judges. It is therefore likely that the Court’s ruling in June will be the one indicated by its president John Roberts. Admitting the new Mississippi law, without arriving at the most traumatic and divisive decision: canceling Roe vs. Wade.
The America that, at least for now, we can imagine, is a country clearly split in two: some states will make abortion available, and others will deny it. After all, apart from all the political, social and judicial struggle of recent years, this is the reality that already exists. In much of the United States, the right to abortion is effectively precluded. An example for all. The appeal against the Mississippi law was filed by the Jackson Women’s Health Organization. It is the only clinic in all of Mississippi where a woman can still have an abortion. Presumably, this too will no longer exist.