What would be the consequences of going back “fifty years ago” on abortion?

From our correspondent in the United States,

The final battle is on. An extraordinary leak of a draft Supreme Court decision has plunged the United States into a scenario that seemed unthinkable ten years ago: America’s highest court is about to reverse Roe v. Wade, who guaranteed abortion rights nationwide in 1973.

On Tuesday, the head of the Supreme Court confirmed that the leak was genuine, but reminded that it was not the final decision, expected by early July. Even six in 10 Americans favor the status quo, about half of US states could ban or restrict abortion in stride. Does this mean a decline of several decades? With what consequences? Can Congress act? 20 minutes make the point.

Would it be a return “fifty years back”?

If the Supreme Court backtracks on Roe v. Wade, abortion is not going to become illegal nationwide: each state will be free to decide. “In practice, it would be a step back fifty years, and even more in some cases,” said Michele Bratcher Goodwin, professor of law at the University of California at Irvine, author of The Police of the Womb: Invisible Women and the Criminalization of Maternity. “In states opposed to abortion, abortion would become illegal, and pregnant women would be forced to travel to another state to terminate a pregnancy. »

Mary Ziegler, historian of reproductive rights law at Florida State University, author of Abortion and the Law in America: De Roe v. Wade to the present day, tempers: this return to square one would above all be “constitutional”. “In terms of access, preventing abortion is more difficult today with abortion pills, and the bans more complicated to enforce. »

What would be the immediate consequences?

The final decision of the Supreme Court is, as we have said, expected by the beginning of July. If nothing changes, 26 conservative states, mainly in the South and Midwest, should immediately ban abortion or drastically reduce the legal period to six or eight weeks, according to a count by the progressive Guttmacher Institute.

Thirteen states have passed “trigger laws”, laws ready to be drawn as soon as the decision is published. The rest have old texts from before 1973 that would apply, including in more moderate states like Michigan or Wisconsin. Most states would allow abortion in cases of life-threatening emergencies to the mother, but many have removed exceptions for rape or incest.

Would it be possible to criminalize abortions performed in another state, or via a pill sent by post?

A woman residing in Louisiana could have to travel more than 1,000 km to get to a clinic in Kansas or North Carolina, with a high cost (travel, accommodation, loss of salary). “The first penalized would be the poorest classes, in which there is a disproportionate share of women of color,” notes Michele Bratcher Goodwin. A dozen states, such as California, however want to become “sanctuaries” and set up aid programs, including for non-residents.

For some states, prohibiting abortion is only the first step. In Missouri, a bill aims to fight against abortions performed in a neighboring state, in particular by authorizing legal action against anyone providing assistance, from the doctor performing the procedure to a relative driving the vehicle.

With the Covid-19 pandemic, the Food and drug administration (FDA) has authorized telemedicine prescriptions and the mailing of abortion pills, which can be used within the first 10 weeks of pregnancy. But it is prohibited by Texas, which passed a law prohibiting abortion after the first heartbeat (about 6 weeks). “It is unclear how the Supreme Court would decide these issues of travel or trade with another state. This will create great uncertainty,” said Mary Ziegler.

Can the US Congress legislate to cement, or prohibit, abortion?

Yes, but it’s difficult. Democrat Alexandria Ocasio-Cortez and others have called on Congress to “codify” abortion rights through legislation. The House has already adopted a text, but it takes a “super majority” of 60 votes out of 100 in the Senate to overcome the obstruction. The Democrats could have done it at the start of Barack Obama’s mandate, but it had been abandoned in the negotiations to pass the health reform.

With the “midterms” (legislative) of November 2022 looming, each camp is rallying its troops. Thousands of people marched in New York on Tuesday, and Joe Biden called on voters to fight “through the ballot box”. Galvanized by the likely overturning of Roe v. Wade by the Supreme Court, “pro-life” activists dream of going further: according to the washington posta group of conservative senators are working on a bill that would ban abortion nationwide after six weeks of pregnancy, and they’re coordinating with possible Republican 2024 presidential candidates.

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