PanamaTimes

Friday, Apr 26, 2024

Can Congress legalise abortion if Supreme Court overturns Roe v Wade?

Can Congress legalise abortion if Supreme Court overturns Roe v Wade?

The leak of the draft opinion striking down Roe v Wade's abortion protections crashed on the American political world like a thunderbolt on Monday night.

Politicians and activists on the left and right had been bracing for the possibility of such a sweeping ruling, but the left hoped and the right feared that the court's nine justices might opt for a more limited shift on abortion jurisprudence.

At the very least, most court-watchers expected the final decision to come - as is tradition with most high-profile cases - in the final days of the court's formal session in June. No one imagined that for the first time in modern American history the actual text of a court's draft majority opinion would be leaked in advance.

As the dust starts to settle after the initial shock of the leak, here are some ways the political landscape in the US may have been altered.


Mid-term elections reshaped


The congressional mid-term election cycle is gearing up, with political parties across the US just starting to hold primaries to select their candidates for the Senate, House of Representatives and governorships and state legislative chambers.

Up until now, issues like the economy, immigration and crime have been the top concerns of voters. The prospect that the US Supreme Court will tear down Roe and leave the fight over the legality of abortion in the hands of politicians, however, instantly changes the electoral dynamic.

Candidates for office previously offered their views on abortion on a more theoretical plan. If they were in the Senate, they could talk about what kind of judges they would want on the courts. They could support or oppose policies that affected abortion on the margins of the constitutional rights afforded by Roe. They could speculate on what they might do if Roe were struck down.

Now, the abortion issue becomes much more concrete. If they're a national politician, do they support a nationwide ban - or protection - for abortion procedures? If they're a governor, which abortion laws would they sign or veto? If they're a state legislator, what kind of laws would they support?

Crowds gathered outside the Supreme Court as news broke about the leaked draft.


In more than half the US states, the political landscape is such that the right to abortion will be all but guaranteed or doomed. But in others - like Pennsylvania and Wisconsin - the fate of the procedure will depend on whether pro-choice Democratic governors win re-election or are defeated.

In other states, control of the legislature often swings between the parties from one year to the next. The side that prevails in November could have a blank slate for determining the fate of abortion for their citizens.

This is now poised to be the "abortion mid-terms" - and the candidates and politicians will have to adjust to this new landscape.


Can Congress legalise abortion?


If Roe falls, the US Congress could pass a law that does essentially what the Supreme Court has mandated for the last 50 years - make abortion legal in every US state.

The path to getting there, however, would be a difficult one for pro-choice advocates.

Last year, the House of Representatives, controlled by the Democratic Party, voted to approve legislation that would secure - and, in some cases expand - the right to abortion afforded by the Roe decision. The vote was 218 in favour and 211 against.

Senator Joe Manchin represents the state of West Virginia.


The bill then moved to the evenly-divided Senate, where one Democrat - Joe Manchin of West Virginia - joined the Republicans in voting it down. Because of Senate rules that several Democrats (including Mr Manchin) are adamantly against altering, passage would have required 60 votes out of the 100 senators - a mark the abortion bill did not approach.

With the draft opinion leak, Democrats will renew their efforts to pass legal abortion protections that would stop the dozens of states poised to ban the procedure.

Leaders in the House could scale back the scope of their proposal in an attempt to woo Senate Republicans sympathetic to abortion rights, such as Susan Collins of Maine and Lisa Murkowski of Alaska. They could again try to change Senate rules to allow a simple majority vote to approve legislation - an effort that was unsuccessful during a voting-rights fight last year.

They could also move forward with proposals to add new (presumably liberal) justices to an expanded Supreme Court or try to impeach and remove Donald Trump-appointed Supreme Court justices - like Brett Kavanaugh - who noted the significance of Roe's 50-year precedent and now are at least entertaining the notion of striking the decision down.

The chances of success on such measures range from slim to remote in the extreme - that puts even more pressure on Democrats to win congressional elections in the autumn. And, if Republicans take back at least partial control of Congress instead, the door will firmly shut on Democratic hopes of a national legislative response to Roe's demise.


Are gay marriage and contraception next?


It is difficult to overstate how much the 1973 Roe decision has shaped US history over the last half century.

It led to the rise of the evangelical movement within the Republican Party, as Christian conservatives formed a political identity around abortion - and other social and cultural issues - and worked to influence Republican policies through their activism.

Both parties shifted and became increasingly polarised as a result of Roe. In the first few decades after the decision, it was common to have pro-choice Republicans and anti-abortion Democrats. Over the decades, both parties slowly purged themselves of these outliers, as they became increasingly aligned on cultural and (as a consequence) geographic boundaries.

The maps of where abortion will be banned or greatly limited that are circulating in the media bear a striking resemblance to the red-state, blue-state maps that are familiar to anyone who follows US presidential elections.

The nation, with a few exceptions, has divided into coastal and urban liberal enclaves and heartland and southern conservative strongholds. The abortion debate - and the cultural wars that followed - help explain why.

Few probably predicted the course American politics would take after the Roe decision. And the shape of political landscape - if the draft opinion striking down Roe becomes the law of the land - is equally uncertain. The abortion fight could simply shift from the courts to the state legislatures, keeping US politics much as they are today. The cultural wars driven by the debate could fade, as the nation settles into an uneasy balance of states with abortion guarantees or bans.

Or the battles could become hyper-charged by the prospective ruling and move to other hot-button social issues that, like abortion, rest on Supreme Court precedent.

The decision enshrining a national right to gay marriage is not nearly as old or as established as Roe. And Roe itself rested on a 1965 decision, Griswold v Connecticut, securing the nationwide right to birth control.

Judge Samuel Alito was appointed by George W Bush.


In his draft opinion, Justice Samuel Alito drew a distinction between rights spelled out in the Constitution - such as the Second Amendment right to bear arms - and the kind of "unenumerated rights" that the court in Roe said guaranteed access to abortion (and, although Alito did not mention it, also protect gay marriage and contraception).

The justice opined that the former were much more secure than the latter, which need to be strongly rooted in US history and tradition. It may not be long before opponents of gay marriage, or in vitro fertilisation or certain forms of contraception cite Alito's words to make the argument that there is nothing in the Constitution that prohibits bans on those practices either.


A Supreme Court in crisis


Never in modern US history has a draft Supreme Court opinion been leaked to the public. The court traditionally operates like Mt Olympus, with opinions handed down from high and the inner workings - the judicial horse-trading, debating and cajoling necessary to reach a majority - all taking place in cloistered chambers.

It is a practice that speaks to the court's unrivalled power to interpret, uphold or strike down any law Congress passes and establish or dismantle individual rights at the stroke of a pen. It is a power that was assumed by the court itself in the early 1800s - and one that is inherently undemocratic. The power has survived, and been respected, for as long as it has in part because protections and procedures that the court's champions have meticulously crafted over the centuries.

Only the nine judges and their handful of clerks - law school graduates selected for their achievements and intellect - are privy to the machinations of the Supreme Court's judicial process. Initial views are expressed in a non-binding vote shortly after a case is presented to the court, draft majority and dissenting opinions are circulated and changes are made. There are reports and accounts - from former justices and those familiar with the process - of how draft opinions can sometimes bear little resemblance to the final ruling of the court.

The leak of Justice Alito's draft majority opinion tearing up the Roe precedent root and branch short-circuits that process and could gravely wound the Supreme Court as an institution, sowing distrust among the justices and their clerks and fully exposing the judiciary to the sometimes harsh influence of American politics.

Accusations and conspiracy theories are already flying - that the leaker was a liberal making a last-ditch effort to prevent Roe's repeal, a conservative concerned that the sweeping Alito opinion was in danger of being discarded or watered down or a moderate who wants to make a final opinion paring back abortion protections seem less extreme.

Chief Justice John Roberts, in a statement, called the leak a "betrayal of the confidence of the court" and a "singular and egregious breach" of trust. He ordered an investigation into the origins of the leak - but the damage has been done.

The veil of secrecy that has protected the court, carefully maintained even around the most significant and controversial decisions, has been shredded.

Newsletter

Related Articles

PanamaTimes
0:00
0:00
Close
Apple warns against drying iPhones with rice
In a recent High Court hearing, the U.S. argued that Julian Assange endangered lives by releasing classified information.
Global Law Enforcement Dismantles Lockbit Ransomware Operation
Russian opposition leader Alexey Navalny has died at the Arctic prison colony
The President of Argentina Javier Mile does not fly private, he flies commercial, with the citizens he represents. And they LOVE him for it.
Bitcoin Reaches $50,000 for First Time in Over Two Years
Belo Horizonte: Brazil's Rising Carnival Hotspot for 2024
In El Salvador, the 'Trump of Latin America' stuns the world with a speech slamming woke policing after winning a landslide election
Tucker’s interview with Putin is over 50M views on X within the first 5 hours.
Finnish Airline, Finnair, is voluntarily weighing passengers to better estimate flight cargo weight
President Nayib Bukele has proudly announced El Salvador's remarkable achievement of becoming the safest nation in the Western Hemisphere.
Former Chilean President Sebastian Piñera Dies in Helicopter Crash
This farmer seems to understand science a bit more than the event organizer, Klaus Schwab.
Facebook turns 20: From Mark Zuckerberg's dormitory to a $1trn company
The Coolest Dictator in the World" on the Path to Victory in El Salvador
Macron, France and fake news
Indian-Origin Man 'King' Arrested For Smuggling $16 Million Drugs Into US
Can someone teach Americans that not every person with slanted eyes is Chinese?
Europe's Farmers Feeding the People, Protesting Against Politicians Who Do Nothing for Their Country and Serve Only Themselves at Taxpayers' Expense
Paris Restaurant That Inspired 'Ratatouille' Loses $1.6 Million Worth Of Wine
Brazilian Police Investigate Bolsonaro's Son for Alleged Illegal Spying
Police in Brazil Raid Residence of Bolsonaro Associate Over Allegations of Illegal Spying
Border Dispute Escalates as Texas Governor Vows Increased Razor Wire
OpenAI Enhances ChatGPT-4 Model, Potentially Addressing AI "Laziness" Issue
The NSA finally acknowledges spying on Americans by acquiring sensitive data
Report Reveals Toxic Telegram Group Generating X-Rated AI-Generated Fake Images of Taylor Swift
US Border Patrol States 'No Plans' to Remove Razor Wire Installed in Texas
Bitcoin Experiences Approximately 20% Decline in Value
Klaus Schwab recently appointed himself as the Earth's "trustee of the future."
DeSantis Drops Out, Endorses Trump.
Nikki Haley said former President Trump is "just not at the same level" of mental fitness as he was while president in 2016.
Residents of a southern Mexican town set the government palace on fire in response to the police killing of a young man
Samsung Launches AI-Driven Galaxy S24, Ushering in New Smartphone Era
Judge Questions SEC's Regulatory Overreach in Coinbase Lawsuit
The Ecuador prosecutor who was investigating the television studio attack, has been assassinated.
Is artificial intelligence the solution to cyber security threats?
Vivek Ramaswamy suspends his US election campaign and endorses Trump.
Viral Satire: A Staged Satirical Clip Mistaken as Real Footage from the 2024 World Economic Forum in Davos
The AI Revolution in the Workforce: CEOs at Davos Predict Major Job Cuts in 2024
Ecuador Reports 178 Hostages in Prison Gang Standoff
The Startling Cuban Espionage Case That Has Rattled the US Government
Two Armed Men in Ecuador, Dressed as Batman and The Joker Storm the Streets.
Armed Gang Raids Ecuadorian TV Station Following State of Emergency Declaration
Anti-Democratic Canada: Journalist Arrested for Questioning Canadian Finance Minister on Support of Terrorist Group
Ecuador's 'Most-Wanted' Criminal Vanishes from Prison
Mexican Cartel Supplied Wi-Fi to Locals Under Threat of Fatal Consequences for Non-Compliance
Border Surge Leads to Over 11,000 Migrants Waiting in Northern Mexico
Outsider Candidates Triumph in Latin American Elections
As Argentina Goes to the Polls, Will the Proposal to Replace the Peso with the Dollar Secure Votes?
Fatal Shark Attack Claims Life of Boston Woman Paddleboarding Near Bahamas Resort, According to Police
×