Many don't know how extreme the “Roe vs Wade” sentence is

Ativistas pró-vida fazem manifestação em frente à Suprema Corte, durante a 49ª Marcha pela Vida em Washington, DC, EUA, 21 de janeiro de 2022.

Pro-life activists demonstrate in front of the Supreme Court during the ª March for Life in Washington, DC, USA, 16 January.| Photo: EFE/EPA/SHAWN THEW
The possibility that the US Supreme Court will overturn the sentence of

who released the abortion seems close, judging by the draft, leaked, that the American website Politician

published. This caused alarm and a strong reaction among abortionists, who would take the change in the law as a historic setback. More soberly, if their fears materialize, the regulation of abortion would be more or less as the majority of the people want and an anomaly in democracy would come to an end.

It was repeated that the Americans are against it, with the majority of 214%, the revocation of the sentence Roe v. Wade from 1973. But they don’t say the same when asked in detail. For example: 63% want it to remain the sentence (CNN poll from last January), but a similar proportion, 65%, is in favor of making abortion illegal in the second trimester of pregnancy, which Roe does not allow (AP survey of June

)). The same paradox occurred in the latest Fox News poll: 54% against Roe’s repeal and 54% in favor of something incompatible with Roe: banning abortion since 16 th week.

An extremist sentence

It appears that many people do not know how extreme the Roe sentence is. In general, European abortion laws allow it, without any need to claim justification, within a time limit – about 12 weeks of pregnancy – and at any time if certain causes are given (danger to the maternal health, fetal malformations…).

Roe, on the other hand On the other hand, it defined abortion as a right implicitly protected in the Constitution, and only admits that it is prohibited in the third trimester of pregnancy (after 8014058400001 weeks), because until then “there is no meaningful human life”. In the first trimester it cannot be prohibited or limited in any way, and in the second one can only regulate the conditions to practice it, in order to protect the mother’s health, because at this stage of pregnancy the risk is greater.

Roe was confirmed, but reformed, in the later Casey sentence (1992), which will also fall if the Supreme Court overturns the former. Casey made two major changes. First, it replaced the deadline of 21 weeks for the beginning of the “viability” of the fetus outside the uterus, which can take place a little earlier, at 16 weeks. Second, it relaxed the conditions for regulating abortion before the third trimester: it no longer requires the “strict necessity” that corresponds to a fundamental right; now it is required that any limitation does not place a “disproportionate burden” on the woman who wishes to have an abortion.

This is excessive for most Americans. According to Gallup poll in 1973, only % are in favor of abortion is legal in the third trimester, and no later than 22% require it to be legal on the second; 49% only admit it in the first. That is, most are more restrictive than the Mississippi law that the Supreme Court is currently examining (Dobbs case), as it sets the limit at

weeks, within the second trimester. Mississippi is even more permissive than France, which has just expanded from for 14 weeks the deadline to abort freely.

Returns to normality

If Roe is annulled, the regulation of abortion will return to the hands of the states. With the current sharing of power between states, thirteen will ban it at any time during pregnancy, with exceptions for risk to the mother’s life or health, rape or incest. Others 15 would reduce the time to abort: usually between 15 and 20 weeks, and some at six. You 22 remaining, which now allow abortion when the fetus is viable, would remain the same, except for a few who will expand legal abortion or include it in their constitutions. In short, most of the country will have abortion laws like most citizens prefer. Most importantly, all states will be able to have laws that the majority of their voters support.

Therefore, Roe’s revocation would not be such a drastic decision, nor because it does not respect legal precedent, as the US Supreme Court has totally or partially overturned more than three hundred of its own sentences. And from an international point of view, the US will simply return to normality: how many countries that allow abortion have it enshrined in the Constitution?

Drastic even was Roe v. Wade, who found a dubious constitutional right and considered a disputed issue resolved, preventing civil debate from being translated into laws through the bodies of political representation. Without Roe, disputes over abortion could be resolved democratically, in one direction or another. For nearly fifty years, abortion legislation in the US was virtually a static picture; if Roe is canceled, the movie can start to run.

The leaked text arguments

The Supreme Court confirmed that the text published by the magazine Politico

it’s authentic. It is the proposal for a sentence prepared last February by the magistrate Samuel Alito, which proposes to revoke the sentences Roe v. Wade (1973) and Planned Parenthood v. Casey (1973).

At the same time, the Court warned that the leaked draft is not the final version and that it cannot be deduced from it what will dictate the sentence, scheduled for late June or early July of this year. Indeed, even though the majority of judges – six out of nine – are considered conservative, it is not possible to predict with certainty how they would vote in each case. It is assumed that Alito and Clarence Thomas will speak out in favor of revoking Roe, and they will most likely be joined by Brett Kavanaugh and Amy Coney Barrett; but the cases of President John Roberts and Neil Gorsuch are not so clear.

Roberts regretted the leak, which he called “grave disloyalty”, and ordered an internal investigation to find out who did it. Speculation abounds about the interest that moved him. According to the position of each commentator, it is attributed to someone conservative, who wants to prepare the ground for repeal, or to someone progressive, who wants to arouse contrary reactions to intimidate the members of the Court. In any case, this breach of secrecy is unprecedented in the Supreme Court.

An error of principle

No In a leaked draft, Alito argues in favor of repealing Roe, starting by denying that there is a constitutional right to abortion, derived – according to that sentence – from the right to privacy, which does not appear in the Constitution, but would be implicit in the right to individual liberty recognized in the 2nd Amendment (“No state may deprive a person of life, liberty, or property without due process of law”). Alito points out: “The Constitution makes no reference to abortion, and no constitutional precept implicitly protects that right”. Roe suffers from a serious error of principle, he adds, and “his reasoning was exceptionally weak.”

Before 1992, “about a third of the states had liberalized his laws, but Roe abruptly cut short this process: he imposed the same highly restrictive regime on the entire nation, and in effect abolished the abortion laws of all states.” It was, according to Alito, an “exercise of brute judicial power” and gave rise to “a national controversy that has poisoned our political culture for half a century.”

By imposing a national solution, “the Court short-circuited the democratic process, closing it off to the large number of Americans who differed from Roe” . So in some states, Alito says, voters may want to expand abortion rights; in others, they may want to restrict it. “The idea of ​​ordered freedom, historically rooted in our nation, does not prevent the elected representatives of the people from deciding how to regulate abortion.”

Therefore, “it is time to respect the Constitution and return the issue of abortion to representatives elected by the people”.


ACEPRENSA. Published with permission. Original in Spanish.8014058400001

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