A time bomb posed by Donald Trump has just jumped in the face of American opinion. The machine does not kill and even wants to save lives. " The Politico site has revealed the Supreme Court's still-debated intention to bury the so-called Roe v. Wade which in 1973 granted the right to abortion. A worrying initiative that would leave each state free to adopt its own law., writes Elle magazine.
Ce scoop extremely rare finds itself online on Politico, a Washington newspaper, owned by the Axel Springer group. This is a draft judgment dated February 10, " authentic " depending on the institution. It must be published before June 30 but can still be amended.
Will it be? That's the whole question.
Either the Supreme Court bows to pressure, with progressive organizations calling for mass marches on May 14. Either she resists it: for the president of the court, John Roberts, the author of this leak is " mad " to believe that the judges will change their position. Immovable, they are not obliged to justify themselves or even to communicate.
This leak nevertheless weakens the Supreme Court. Never had such an institution experienced such an incident. John Roberts may well denounce “ a betrayal " and launch an internal investigation, this act shows that its author “is ready to give up his professional ethics for a political cause”, reports on Twitter Jonathan Turley, professor of law at George Washington University.
This leak says a lot about the issue. " The fraudulent publication of this draft judgment is probably a desperate move” destined to “cause a global scandal”, affirms Gregor Puppinck, jurist, director of the European Center for Law and Justice (ECLJ), relay of pro-life influence in the Parliament of Strasbourg.
In 99 pages (!), the draft scrutinizes the two judgments Roe v. Wade (1973) and Planned parenthood v. Casey (1992). The Supreme Court exposes the factual and legal errors. The new judgment is 65 pages. It is a question of convincing by reasoning, in the Anglo-Saxon tradition, distinct from ours based on authority. Conservative judges are driven by a strict interpretation of the Constitution: judicial restraint prevails. It is not a question of infringing the case law but of recognizing errors. In strong cultural contexts, the Supreme Court had already been wrong twice and had recognized it, on racial segregation (judgment Plessy v. Ferguson, 1896) and on compulsory sterilization (judgment Buck v. Bell, 1927) .
Roe v. Wade is the most well-known decision in contemporary US history. In 1973, judges ruled that legal fetters on abortion violated the XIVth Privacy Amendment (privacy). In 1992, they added that " at the heart of freedom is the right to define one's own conception of existence, of the meaning of life, of the universe and of the mystery of human life”. The two judgments flow from this same postulate.. It was he who founded the right to abortion in the United States.
This preliminary draft destroys this assumption. " There's nothing left", says Puppinck.
"Notions of privacy and personal autonomy cannot justify abortion, because this practice involves the life of a human being, of a third party", he adds. The new judgment, written by conservative judge Samuel Alito, denounces “ abuse of judicial authority" whereby their predecessors short-circuited the democratic process”.
In other words, the judges deviate. They admit to having usurped the power of the legislator. The two old judgments are reduced to the rank of a judicial coup. Roe v. Wade was " totally unfounded from the start”, adds Samuel Alito. In his view, the right to abortion is not protected by any provision of the Constitution”. If this interpretation is validated, the United States will return to the situation in force before 1973. Today, federated states hostile to abortion do not affect the substance of the right but complicate the methods of exercising it. Tomorrow, each state will be free to prohibit or authorize abortion. Exactly like the death penalty. From trigger laws – these laws already ready – will be “unsheathed” as soon as possible.
This judgment, if it passes, will have no impact on the "new rights", when a third party is not involved. Surrogacy cannot take advantage of the privacy, gay marriage yes. What the Supreme Court could then prohibit would be late-term abortions, as in New York State.
Under Donald Trump, the Supreme Court changed course. It has six conservative judges out of nine. The former American president propelled three of them into the Temple of Justice. This is "Enduring Legacy" Trumpism, we wrote in 2020, when Amy Coney Barrett was promoted there, after Neil Gorsuch (2017) and Brett Kavanaugh (2018). Catholic and mother of 7 children, she embodied both a face and a turn.
Less than two years after his appointment, the statue of US progressivism is about to fall.
This article is published from Selection of the day.