Alabama voted on Wednesday, May 15, the most repressive law in the United States on abortion. The text does not provide for an exception in case of rape or incest, and punishes with imprisonment, from ten years to ninety-nine years the doctors practicing abortion, except in a life-saving emergency for the mother or"Lethal anomaly" fetus.
The professor of history specialist of the United States, Corentin Sellin, discusses this strategy adopted by anti-abortion to force the Supreme Court to question the current case law, which dates from 1973 and allowed the authorization to perform abortions in the United States. "Donald Trump's election galvanized anti-abortion and encouraged them to go back to war", he believes.
Is this legislation surprising from a state like Alabama?
Alabama has always been an ultraconservative territory, located in the heart of the "belt of the Bible", which brings together about twenty states of the Southeast. For this predominantly white and evangelical electorate, the prohibition of abortion has always been a primary demand. It is therefore not surprising to see the emergence of this particularly repressive law – which has yet to be signed by the governor. The latter is also fiercely anti-abortion, so even if it may take a little time, she will surely end up ratifying it.
Except that this law will remain unconstitutional as long as the 1973 jurisprudence "Roe versus Wade" allowing permission to perform abortions in the United States – is not overturned by the Supreme Court.
So this is a strategy on the part of anti-abortion to force the hand to the Supreme Court?
What is important to understand is that there is no equivalent in the United States of our Veil Act, that is, legislation passed by Parliament authorizing abortion on terms and conditions. accurate. The US Congress has never voted for such a law, for fear, in particular, of blaming part of the electorate.
In the United States, the right to abortion is constitutionally based on an interpretation of the fourteenth amendment, which guarantees the right to privacy (right to privacy). At that time, in 1973, by seven votes to two, the Supreme Court had ruled that this right extended to a woman's decision to have an abortion.
But this reading has been fiercely fought for several decades by anti-abortion activists. So far, it has been restricted – notably by the 1992 judgment, Planned Parenthood versus Casey, which sets out abortion modalities in particular to reduce the delay – but has always been confirmed on the merits. Last time, it was in 2016, by the stop Whole Woman's Health versus Hellersted.
And this jurisprudence can always be broken. Since the election of Donald Trump, there has been a majority of Conservative judges in the Supreme Court – five to four. So the purpose of the maneuver is to push the nine judges to reconsider the 1973 decision, and to move the lines on the right to abortion.
This "maneuver" has a link with the presidency of Donald Trump?
Before his election, Donald Trump, interviewed by Fox News, had expressed his desire to overturn the jurisprudence Roe versus Wade. Which is quite ironic in itself, since in the 1990s, Donald Trump was happy to say abortion on TV sets.
Since his election, the US president has appointed two judges to the Supreme Court: Neil Gorsuch and Brett Kavanaugh. Everything proves that these two conservatives have anti-abortion positions. Their appointment is therefore a signal given to his anti-abortion electorate. As a reminder, over 80% of white evangelicals voted for Donald Trump.
In addition, the administration of Donald Trump has continued to restrict the right to abortion in recent months. In particular, it recently passed a law that allows all private health workers and the public to use their conscience clause to avoid performing abortions. The president himself, for several weeks, uses in each of his meetings a very violent rhetoric towards the Democrats, whom he accuses of exterminating the babies, and towards the doctors practicing the abortion, qualified "Assassins."
Donald Trump is not the direct initiative of the legislative procedure, but he embodies this renewal conservative identity and religion. His election galvanized anti-abortion and prompted them to go back to war against current jurisprudence. Very restrictive laws have been promulgated in several states in recent months.
What do we know about the position of the Supreme Court on the subject?
If the Supreme Court decides to seize the subject – which it can refuse – it will be a colossal political decision, which will remain in the history of the country. However, according to the latest polls on the subject, 71% of Americans approve the existing case law. Even among Republican voters, a majority, albeit a little less broad, supports it. It must be said that the judgment Roe versus Wade remains relatively restrictive and is therefore generally accepted by the greatest number.
The current Chief Justice of the Supreme Court, John Roberts, is fully aware that his name would remain tied to this decision, and although he is a fervent believer known for his "pro-life" stances, he is not sure he's taking the plunge. As evidence of this hesitation, he joined forces with the four progressive judges in February to block the enactment of a law passed in Louisiana that limited the conditions for practicing abortion physicians.
On the other hand, the Supreme Court has not hesitated in recent years to question very old case law. In 2018, it broke a forty-one-year-old judgment concerning collective bargaining and the right to organize. Legally, it is therefore entirely possible that the right to abortion is in question. But it is politically that the calculation will be risky.
Is there a risk, in the long term, that abortion is banned in the United States?
In fact, the right to abortion is already widely questioned over a large part of the United States. In some states, including those in the Great Plains, women have to travel hundreds of miles to find a doctor who practices abortions. They are often victims of harassment by anti-abortion activists, who violently attack them.
On the other hand, in other, more liberal states, the right to abortion is considered an indefollable acquis. We thus find ourselves with a nation where two diametrically opposite visions coexist on the subject. The whole question is whether they can continue to live together, despite these increasingly obvious social differences.