By JHANVI MEHTA
Protests began outside the Supreme Court at the news that they may vote to repeal Roe v. Wade
Leaked documents at the turn of May 2022 have indicated that the US Supreme Court is set to strike down its 1973 decision to uphold abortion as a constitutional right for women. Should the decision, which is set to be finalised this summer, be confirmed, 28 states will likely enact regressive moves to stop it. Many will outrightly ban it.
This decision throws the future of reproductive and women’s rights into uncertainty. It also undermines the legitimacy and image of the Court as an institution for confidential discussions, free from the leaks prominent within other political branches of US government.
Politico disclosed the draft opinion which it states was circulated by Justice Samuel A. Alito Jr. This characterises an acute violation of present-day Supreme Court communications protocol. The report stated Alito, alongside Justices Clarence Thomas, Neil Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett, had voted to overturn the precedent. This conclusion appeared to have potential in December when the Supreme Court, with a strong conservative majority, deliberated over Mississippi legislation outlawing abortions after 15 weeks of pregnancy. It is striking that George W. Bush and Donald Trump both lost the popular vote in the years they secured their presidencies, yet still appointed five of these judges who will shape the lives of millions of American women for decades. That brings into question the democratic legitimacy of the American political system as it seeks to violate the sexual autonomy of women.
Alito justified that Roe v. Wade was not decided correctly, and that it had established stark public divisions over the hotly contested and politicised issue. He argued for it to be overruled on the grounds that the issue of abortion should be legislated and dictated by political representatives, and because the US Constitution makes no explicit reference to abortion. However, the majority of the Court - in their constructivist interpretation of the Constitution - have failed to consider that overturning Roe would violate the right to privacy, which encompasses the right to accessing contraception and participating in safe and consensual sexual activity. This leaked proposal dismisses the idea that an abortion ban ultimately subjugates the reproductive power of American women, with Alito also stating that women can utilise their electoral and political power to dictate whether they want to possess that right.
In the instance Roe v. Wade is repealed, Alito is simplistically stating that Americans should control access to abortion with their votes. But there’s more to this. Voting Republican may end up denying access to contraceptives; which will be justified as preventatives of life in more fundamentalist states. Emergency contraceptives, implantation-preventing devices, and then hormonal contraceptives could be outlawed, possessing huge ramifications for reproductive health.
Following the leaking of the report, crowds and protests emerged outside the US Supreme Court, opening up backlash against the leaked opinion and the Court itself for turning the clock back fifty years on Roe v. Wade and women’s ability to exercise autonomy over their bodies. An immediate pragmatic impact of this news has been in allowing Democrats the opportunity to campaign for the national protection of abortion rights, which could help the party bounce back after sluggish economic growth and help raise the low approval ratings of President Biden ahead of the upcoming midterms.
Bernie Sanders has called for the codification of the precedent by calling for an end to the Senate’s filibuster rule, in order to legislate such a bill with only a simple majority. A Democratic bill would have achieved exactly this in February; but it only reaped 46 votes due to the opposition of Sen. Joe Manchin III and other Democrats, who did not vote on a fundamental piece of legislation that could have facilitated the protection of abortion rights.
Polls have indicated that a majority of Americans back some form of abortion rights, even if the public favour specific limits on abortion. A CNN survey conducted in January concluded that only 30 percent of Americans favoured the court to completely overturn Roe, in contrast with 69 percent who were in opposition. Over the years, Democrats have been unsuccessful in translating wide popular support into fitting political power on the Supreme Court and US Congress.
Roe is necessary to ensure basic healthcare rights, and is about more than simply abortion itself. This will entrench huge inequalities in sex, wealth, and race. Striking down the precedent is a human rights issue. While it is vital to note that the Court has not issued an official decision on abortion, overturning Roe will be unjustified, insulting women's rights to access sufficient reproductive healthcare. The conservative-majority Supreme Court is poised to overturn a decades long precedent and enforce its right-wing, ostracised views on the entire country. Roe v. Wade should be upheld and finally put into appropriate legislation instead of a retractable conventional-based ruling. If repealed, it will be a long walk back to genuine freedom for American women, at the probable expense of many who desire a safe way to have abortions.
Image: Flickr / Victoria Pickering