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I am no Supreme Court
expert. But it was impossible to listen to its proceedings this week
and not conclude that Roe vs Wade, the 1973 ruling that enshrined
American women’s right to an abortion, will either be drastically
curtailed in June, or fully overturned. The smart money now appears to
be tilting towards the latter.
Even if the court’s conservative majority goes with Chief Justice John
Roberts’ evident bias for an incremental step — upholding the 15-week Mississippi restriction,
which would cut nine weeks from today’s limit, rather than scrapping
the right altogether — America should brace for a deeply worrying
intensification of its cultural civil war.
The
Roberts compromise would be a tactical way station on the way to full
repeal, rather than a philosophical resting ground. Roberts is no ally
of women’s reproductive rights. His goal would be to preserve the
court’s institutional legitimacy by taking the least provocative path to
repeal. But the other five conservative justices could easily ignore
Roberts and overturn it in full — the direction in which Amy Coney
Barrett and Brett Kavanaugh, the two most recent appointees, appeared to
be going. Samuel Alito and Clarence Thomas are both hardline opponents
of the right to choose. That would just leave Neil Gorsuch, a highly
conservative jurisprudentialist, as a possible recruit to a Roberts
compromise.
But the tide appears
to be with the hardliners. Why would they dilute the full realisation
of what they have spent so much of their careers vowing to bring about?
Though
America’s conservative movement has for half a century been raising
storied war chests, funding legions of grassroots organisers, and
grooming generations of judges to bring about this revolution, it is
hard to overstate the destabilising impact the end to Roe vs Wade
would have on America. At a stroke, roughly 20 states would move to
outlaw abortion, which would put large chunks of the US into the company
of some of the most conservative — and undemocratic — countries in the
world. For fans (including me) of Margaret Atwood, it would tear a leaf
from the pages of The Handmaid’s Tale.
Large
numbers of women in the world’s leading democracy would lose critical
sovereignty over their bodies. I am no authority on foetal viability or
indeed on reproductive rights so I will spare Swampians my second-hand
views of what that would mean for women. Rana, as a feminist and a
mother you’re infinitely more qualified to talk about that. I’d be very
interested in your take.
![Pro-abortion rights activists outside the Supreme Court of the US]()
‘It
is worth bearing in mind that consistent American majorities — even
settled ones, dare I say it — have long supported women’s right to
choose’ © AP
What
I want to emphasise are the highly dangerous political and
constitutional reverberations that would result from the end of Roe vs
Wade. There would be no realistic way of reversing the Supreme Court’s
move. Democrats
have already scheduled votes to enshrine the 1973 ruling into federal
law. But they would have no chance of clearing the Senate filibuster. It
is hard to imagine a situation in which Democrats have more than 60
Senate seats as well as controlling the House of Representatives and the
presidency. Likewise, it could take up to a generation to reverse the
inbuilt conservative majority on the Supreme Court.
It
is worth bearing in mind that consistent American majorities — even
settled ones, dare I say it — have long supported women’s right to
choose. But they appear to be no match for the Christian right’s
organisational and tactical prowess. The most obvious fallout would
therefore be to dramatically ratchet up calls for the Supreme Court to
be reformed either by increasing its size to say 15 justices with six
new liberal appointees, or by imposing strict term limits.
I
doubt Biden would agree to such a radical move, even assuming he could
persuade Joe Manchin and others to scrap the Senate filibuster in time
(to rush it through between the space of the June ruling and the
November midterm elections, when Democrats are likely at least to lose
control of the House). The probable outcome would thus be a further
weakening of liberal and much of centrist America’s faith in the
country’s political viability. Nothing good can come from this.
I
have lived in the US for quite a long time and have generally
subscribed to the old Winston Churchill saw about America doing the
right thing after exhausting all the alternatives. Alas, this would be
the opposite of that. Developments such as this convince me that the
country is on course for an even worse showdown than we have witnessed
in the past few years.
Someone
recently likened America’s increasingly sullen and irreconcilable
cultural and political divisions to the dry crackling floor of a
Californian forest. You have no idea where or when the lightning will
strike, or how easily the flames can be put out, but a fire is all but
certain. Abolishing Roe vs Wade would be an act of judicial pyromania.
Rana, do you agree? |