Will the Draft Abortion Decision Lead to a Political and Societal Explosion in the United States?

Leaks indicating that the US Supreme Court intends to overturn a historic ruling protecting women's right to abortion have sparked protests by supporters of women's right to choose, and those opposed to the right to abortion in front of the Supreme Court building on Monday evening, May 2, 2022.

According to the Guttmacher Institute, a reproductive rights group, if the Supreme Court upholds this decision definitively, abortion would definitely or potentially be banned in 26 states, and the United States would revert to the status quo before 1973 when each state was free to allow or prohibit abortion.

Observers believe that this will cause a major legal and societal change in the lives of Americans, and sets a clear example of the magnitude of the power that the conservative movement drew from former President Donald Trump, and how this current will change society in the coming decades.

In 1973, at the conclusion of its consideration of the Roe v. Wade case, the court issued a ruling that set a judicial precedent, as it guaranteed women the freedom to have an abortion up to 22 weeks after the start of pregnancy.

It is noteworthy that abortion rights are a controversial issue in the United States, dividing Americans sharply on partisan, ideological, and religious grounds between opponents and supporters on the issue, which did not stop at the courts but extended to the ballot boxes and the legislatures of the various states.

 

Abortion Rights

The President of the US Supreme Court, John Roberts, confirmed the authenticity of the draft published by Politico on May 2, 2022, stressing that the decision is not final, and calling for an investigation into the leak.

Democratic US President Joe Biden criticized the draft, expressing his concern that it would expand to other rights that are in dispute between the two parties, while his deputy, Kamala Harris, considered it a threat to the rights of all Americans.

The brunt of the leaks, the first of their kind in the recent history of the Supreme Court, which is an exceptional breach of the secrecy surrounding its procedures, spread like wildfire among politicians in Washington so that their statements did not calm the reactions about the possibility of revoking one of the most prominent rights that ignited a long-term division and controversy between Republicans and Democrats.

The leaked draft decision shows that members of the Supreme Court agreed by a majority to overturn the Roe v. Wade decision, which was drafted by Conservative Justice Samuel Alito on February 10, who in turn emphasized that the right to abortion is not protected by any article of the Constitution.

Observers believe that the debate over the legality of abortion may turn into a heated political battle, at a time when the country is preparing to contest the midterm elections next November, stressing that the political battles and the leaking of an important document may harm the reputation of the Supreme Court.

Politico revealed that under the court's lengthy procedure, judges hold a preliminary vote on cases shortly after the pleadings, and a member of the majority is appointed to write a draft of the court's opinion.

“The draft is often amended in consultation with other judges, in some cases, judges change their votes completely, creating the possibility of changing the court's final decision in this case, which will not be issued before the end of next June,” it explained.

Given the great geographic and political divisions in the United States on this issue, it is expected that half of the states, especially in the conservative south and center, would quickly ban abortion on their soil if the Supreme Court found that abortion is not a right guaranteed at the federal level.

Nearly half of American women of childbearing age (ages 18 to 49) - about 36 million women - may lose access to legal abortion, according to an estimate released by Planned Parenthood, a health care organization that provides abortions.

There were about 630,000 abortions reported in the United States, which was significantly down from the 765,000 in 2010, according to data from the US Center for Epidemiology and Disease Control.

On her part, Ms. Nadia Bouchaalah, representative of ASCA association for social and cultural action, indicated in a statement to Al-Estiklal that “the current bipartisan debate over abortion in the United States shows that the value of freedom is not absolute and static.”

“Just as a woman has the right to make independent decisions about her own body, the fetus's right to life should also be protected from the horrific killing of abortions, especially miscarriages that occur in the last months of pregnancy,” she added.

Ms. Bouchaalah expected that Republican pressure would succeed in changing this law, but she added that she personally does not see that the issue will be soon because it is a constitutional right and it will require many years of struggle to change it.

 

Strict Restrictions

The Economist indicated in its report on April 16, 2022, that the controversy will rage in the United States in the coming months, with the possibility of a ruling in the state of Mississippi banning the termination of pregnancy after 15 weeks.

“Using this court ruling against the Roe Act and giving states freedom to decide about abortion would have a huge impact on American society, as more than half of the US states may consider abortion illegal,” it said.

“The chances of the Republicans now seem good to obtain a majority in Congress, but if the Roe Act is repealed, this will allow the Republicans to obtain a broader voting base,” the newspaper pointed out.

The Economist also suggested the Republican majority’s attempt in the Supreme Court to reduce the term of pregnancy termination, noting that the Supreme Court had already issued a decision as well.

In 1992, the Supreme Court reduced the period approved by the Roe Act from 26 weeks to 23 weeks, according to the viability of the fetus in life.

“Despite the opposition that this decision may meet, the majority of abortions in the country take place within 12 weeks of pregnancy,” it added.

“This may keep pace with public opinion, although many countries impose strict restrictions on abortion, but the United States has the most liberal laws in the world, regarding abortion on demand,” the newspaper said.

Of the 59 countries that allow abortion on demand, the United States is one of only 7 that allow it after 20 weeks.

Opinion polls indicate that most Americans' support for abortion after the first trimester of pregnancy is dropping dramatically.

But what activists fear is that the Supreme Court will completely repeal the law and ban abortion, according to the newspaper, and this was reversed after the state of Texas, in September 2021, legalized abortion after six weeks, without exceptions for cases caused by rape or incest.

The newspaper stressed that “the Supreme Court's inability to stop the ban imposed by the state of Texas indicates that five of its justices believe that the Roe Act is not worth complying with, and some of those judges said so to the letter late last year.”

It is noteworthy that the balance of power within the Supreme Court had changed radically during the era of Trump, who appointed three of its nine judges, and chose all of them from conservative so that a two-thirds majority became conservative (six to three).

On her part, legal historian at the University of Florida, Mary Ziegler, confirmed to the newspaper that proposing a new period for the viability of the fetus may make it difficult to repeal the Roe Act in the future.

 

Possible Scenarios

The most likely scenario for the future of the Roe Act is for the Supreme Court to propose something less effective, i.e. to say that the use of the fetal life standard is wrong, and the correct method may be adopted in the future, but the question here lies, whether the Roe Act will be banned gradually or directly, as reported by The Economist.

“The Roe Act could be phased out if the court undermined the fetal life standard, and anti-abortion states could pass all kinds of bans, and federal courts are expected to uphold them,” it added.

If the annulment decision is direct, the effect will be immediate, according to the newspaper, as 12 states may activate the trigger laws that would take effect at the moment when the Roe Act is reversed.

The newspaper expected that 12 other states would dust off ban laws that had been passed before the Roe Act or the adoption of new restrictions.

Some Democrats, including President Joe Biden and Senator Bernie Sanders, were quick to call on Congress to pass legislation immediately adopting the Roe Act as official law in the United States.

However, The Economist ruled out that Congress would change the course of events, noting that although members of the House of Representatives, with a Democratic majority, have passed a bill that would guarantee abortion rights, there is little chance in the Senate.

In turn, the New York Times reported in its report on May 3, 2022, that the Supreme Court's invalidation of the Roe Act does not mean that states cannot decide for themselves to provide abortion services.

“Many states will continue to allow the abortion law in force over the past years, and some states have even begun preparing to help women who may not have the option of terminating a pregnancy in their states,” the newspaper said.

The New York Times suggested that “25 states would ban abortion if the Supreme Court allowed them to do so, most notably: Alabama, Arizona, Michigan, Mississippi, Missouri.”

“In the event of repeal of the Roe Act, the United States would join a very small group of countries that have tightened rather than relaxed abortion laws in recent years,” the newspaper pointed out.

Three countries have done so since 1994: Poland, El Salvador, and Nicaragua, while in that period, 59 countries expanded access to pregnancy termination services, according to the Center for Reproductive Rights.

It is noteworthy that 66 countries around the world, where a quarter of women of childbearing age live, completely prohibit or allow abortion only if it threatens the life of the mother or for various reasons.

Opinion polls say Americans are strongly against overturning Roe v. Wade altogether, with 54% of Americans believing Roe's decision should be supported, while 28% think it should be overturned, according to a new Washington Post-ABC poll.