In an all-out attack on the 1973 decision, made public by the media Politico, conservative judge Samuel Alito writes that Roe v. Wade should never have seen the light of day. Its adoption, he continues, did not certainly not successful
to calm the abortion debate that divides Americans.
The Supreme Court upheld the authenticity of the leaked document, but was quick to clarify that it was not not a decision of the Court or a final position of one of its members
.
What would happen if the Court were to revoke this historic judgment? Professor at the Faculty of Law of the University of Ottawa Daphne Gilbert, specialist in American constitutional law and access to abortion, answered our questions.
The report by Azeb Wolde-Giorghis
Photo : Getty Images / Anna Moneymaker
What will no longer be protected if this decision is ratified?
The Roe v. Wade recognizes a constitutional right to abortion. And it is explicit.
By virtue of this judgment, the Court had established a system of trimesters which made it possible to establish the moment when abortions might be performed. Thus, States might not prohibit abortion before the viability of the embryo, established at approximately 24 weeks.
In 1992 there was another case, Planned Parenthood v. Casey, who sort of abolished this system of trimesters and ruled that even before the viability of the fetus, states might put in place certain restrictions, including limiting the professionals who can perform abortions and the number of establishments where the intervention can be done.
This decision therefore meant greater regulation of access to abortion, but the fundamental principle of Roe c. Wade held that a woman might not be prohibited from having an abortion until the fetus was considered viable. And that’s what’s at stake with this upcoming US Supreme Court decision.
Would abortion become illegal everywhere in the United States?
No. But if the U.S. Supreme Court overturns Roe v. Wade, the States will then be able to have free rein to pass laws with the aim of making abortion illegal.
How did the Supreme Court come to reconsider this right to abortion?
In 2018, Mississippi passed a law banning abortion following 15 weeks of pregnancy, which is in direct violation of Roe v. Wade. This is why the Supreme Court was seized of this caseconnue sous le nom de Dobbs c. Jackson Women’s Health Organization.
Before the text written by Judge Alito was made public, three scenarios were considered. The first: that the Court confirm the validity of Roe v. Wade and reiterates the right to abortion, be the best scenario. But no one really believed that might happen, since the Supreme Court is predominantly conservative.
The second option was for the Court to recognize the legitimacy of the law passed by Mississippi, specifying nevertheless that abortion might not be prohibited. The state would then have been authorized to set a limit on pregnancy beyond which a woman might no longer abort.
And the last scenario – the worst – is the one looming on the horizon, according to the leaked text. Namely that Roe v. Wade had no place to be and that the right to abortion must therefore be cancelled.
How many states plan to ban abortion once Roe v. Wade cancelled?
More than twenty states are ready to ban abortion on their territory. Thirteen of them have already passed laws so that the procedure can no longer be practiced as soon as the Supreme Court renders its decision, such as Alabama, Mississippi and Tennessee.
A dozen others have already indicated that they would prohibit any voluntary termination of pregnancy (abortion) or impose restrictions if the highest court in the country were to overturn Roe c. Wade.
Could a woman face justice if she tried to get an abortion in another state?
Some laws that have already been passed include provisions prohibiting travel from one state to another for the purpose of abortion. So it’s a real possibility.
It should be noted, however, that in the United States, nearly half of abortions are performed by medication, not surgery. And it keeps growing. I believe it will be difficult to regulate the distribution of these drugs and to stop a woman who tries to have an abortion in this way, since it is a procedure that is very similar to a miscarriage. So it might be less easy to prove, but it’s not impossible either.
« We’ve been saying it for over 50 years, but women will continue to have abortions one way or another. The question is how safe they will be. »
And those who try to help these women in their efforts, such as members of the medical staff, might they also be penalized?
Yes. I think the laws are going to be draconian. Not only will we see states prohibit abortion, but also prevent anyone from helping or facilitating any travel to obtain an abortion. We are talking here regarding the ban on driving a woman from one state to another or paying for her transportation.
Texas has passed a law under which Uber and Lyft drivers can be fined up to $10,000 if they help someone get an abortion. These are civil charges, but I am convinced that once Roe v. Wade canceled, people might find themselves criminalized for supporting a woman in her efforts.
Is it rare for the US Supreme Court to overturn a decision made in the past?
Yes, that almost never happens! The best-known case of this kind is that of Brown v. Board of Education, which dates back to the years 1954-1955. The Supreme Court then ruled that racial segregation in public schools was unconstitutional.
According to former United States Supreme Court Justice Sandra Day O’Connor, there are two cases that stand out in the nation’s history, two landmark moments when the highest court tried to resolve a divisive issue. deeply Americans, either Brown v. Board of Education and Roe v. Wade.
She said a decision as important as Roe v. Wade, since the Court had addressed the nation and might not have been wrong regarding it. But it seems that the justices who currently sit on the Supreme Court do not agree.
When can we expect an official decision?
Within two months, the Supreme Court will have to render its decision, and it will come into effect when it is announced. The five judges who affixed their signatures to the leaked document – the simple majority needed for it to be approved – will have a hard time changing their minds.
« If they change their minds, they will look like they bowed to public pressure rather than making a decision guided by the highest standards of law. »
From what we know, at least three members of the Court will vote to uphold Roe v. Wade. And Chief Justice John Roberts will have to determine which side he is on. But even if he decided not to vote to overturn the judgment, it wouldn’t be enough to tip the scales the other way. The scenario remained the same, the end of Roe v. Wade.
Roe c. Wade
Roe v. Wade stems from a challenge launched in 1970 by Norma McCorvey – renamed Jane Roe in the lawsuit to preserve her anonymity. Pregnant and single, she wanted to have an abortion in Texas. However, as her pregnancy did not threaten her life, McCorvey might not request an abortion, a procedure prohibited by law.
Attorney Henry Wade, who represented the state of Texas in the case, initially won his case in district court, but Ms. McCorvey’s lawyers appealed the case. On January 22, 1973, the Supreme Court decided the issue seven to two, striking down Texas’ abortion laws.
* Interview content has been edited for brevity and understanding.
