Abortion and the U.S. Supreme Court

Ricardo Israel

An unprecedented event took place in the United States. This is the leak of the draft of a ruling by Justice Samuel Alito, one of the 9 Justices of the Supreme Court, appointed like his colleagues until he dies or decides to resign. It is a real political and news bomb, which in a city full of leaks had never taken place in the Supreme Court, and with the possibility of influencing the legislative elections in November and the conduct of Congress itself.

The Supreme Court (hereinafter, the SC) of the USA is not an institution the same as those that bear the same name, in other parts of the world. It has more power and less control than other places, and in that sense, it is almost unique. At least in the U.S., no other institution or person has that power, not even the president. It is the definitive word in everything which is equivalent to a law or perhaps more than it, since, by the system of precedents, its decisions must be obeyed by everyone at all levels.

Curiously, this attribution does not appear in the constitution, but was a decision of the SC itself at the beginning of the 19th century when deciding in a ruling, to be the definitive authority in the country, which has been fulfilled since then to the letter. It is also the reason why the United States does not sign international treaties (including on children’s issues) that limit in any way the powers of that Court.

When the Justices go on vacation in June, the SC make public their sentences of greater notoriety, so that the impact is in his absence. It does not even have the obligation to see everything that is presented, since they decide to listen to few cases and almost always those that have a constitutional component. Its members are said to have a duty of ingratitude to those who appointed them.

The case in question was a law of the State of Mississippi that prohibited abortion after 15 weeks of gestation, and when the SC exceptionally agreed to hear arguments for and against, it opened the possibility of revisiting the 1973 ruling known as Roe v. Wade, which defined the issue of abortion since then. The power and influence of the SC also comes from the fact that many deeply controversial issues find a solution in the courts rather than in Congress, as also happened with racial integration.

What the ruling did was declare that the right to privacy covered the right of every woman to terminate her pregnancy and that no legal provision could prohibit it, leaving it to each state its regulation. This ruling has had minor tweaks in the CS itself, but nothing has altered what is provided therein. Perhaps until now, if the ruling is confirmed, since it is usual that as the Court sees few cases, the greatest consensus is sought as far as possible. This is how numerous drafts circulate among the judges that undergo modifications until the end, since every word counts for subsequent interpretations.

That draft corresponds to one of those that Judge Alito has circulated and if it represented the final majority, it could bring with it modifications to what was contained in the original Roe v. Wade ruling that not only resolved between the parties, but, for the whole country, as is usual in the institution.

The draft published in Politico highlights Alito’s view that the constitution does not specifically mention the right to abortion. However, this also happens with many other issues, including the right to vote that is not mentioned either, which in itself is not surprising since its admirable duration is also the result of its brevity, since it has only a preamble of 56 words (which begins with something hitherto unrecognized, the phrase “We the people”), 7 articles and 26 amendments in more than two centuries, in addition to a very long process to modify it.

Alito adds that the Constitution does not prohibit states from regulating or prohibiting abortion and the great change would be that since Roe, legalization was understood as something that states could not prohibit. As the White House itself has said, there is no evidence that this is the definitive opinion, but in any case, even if that part of the historic ruling disappears, nothing indicates that abortion is again illegal throughout the country.

The basis of the USA’s system, without which neither its politics, society nor history is understood, is that everything that is not expressly referred to the federal government by the constitution or the law, is the spring of each State. Therefore, if Alito’s opinion is the majority, it is most likely that as in other matters, the situation will vary from State to State, with states that allow it and states that do not do so after a few weeks, since it would be maintained that there can be no total ban on abortion.

Having to do with life and death, there is passion and not only difference of opinion, even bombs and shooting attacks against clinics. Roe against Wade did not put an end to the debate either, instead it has been transformed into a political football, deciding winners and losers in elections, especially local and state.

The impact has been tremendous. The internal culture of the SC itself has been deeply affected and surely a whole centenary way of talking and negotiating rulings, will be modified. And if the leaker is discovered by the FBI, in all probability he/she will be prosecuted and the end of professional qualification awaits him/her in case of being a lawyer, as perhaps also awaits a fortune for the book and the film.

There is no doubt that the goal is political and to influence other judges and the upcoming elections. Another evidence of the polarization that the United States is experiencing, that was already present in all the confirmation hearings of the last members. The calls for the packing of the SC resurface, that is, the increase in the numbers with new members, since after Trump and his appointments, there is a majority that the media identify as conservative, since in this country liberals and conservatives are used as equivalent to what in other places is called left and right.

This would also mean to utilize the minimal majority that the Democrats have today in Congress and that they have not been able to take advantage of, due to their internal differences, to impose legislation that protects abortion.

What there is no doubt about, is that an issue has emerged that would add to the War in Ukraine with the potential to influence midterm elections in November, that seemed to have been won, and even comfortably said by the Polls, by the Republicans. Now Democrats feel this issue may be the one that allows them to rebound.

“The opinions published herein are the sole responsibility of its author”.