LESSONS FOR SA IN ROE ABORTION FRACAS
The Roe vs Wade saga in the US demonstrates the value of a politically impartial judiciary — long may ours stay that way
The unprecedented leak from the most secretive of US institutions has rocked an already fraught political landscape ahead of elections in that country later this year.
It was US news website Politico that first obtained the draft of the Supreme Court majority opinion that would overturn Roe vs Wade, a federal landmark decision and “super-precedent” that has legalised abortion in the US since 1973.
Of course, it is possible that the draft opinion, written in February by one of the court’s conservative justices, Samuel
Alito jnr, may still change before the nine-member court’s final ruling, expected in about two months.
Either way, it’s a ruling being watched intently both in the US and beyond its borders — including SA.
In the US, the ruling is likely to further intensify political divisions. Liberal voters, who support the Democratic Party, will be fired up by outrage at the prospect of the end of a 49-year right to have control over their bodies. For conservatives, who support the Republicans, it’ s a triumph.
“The relevance of this case to SA is that it is a painful and important reminder of the dangers of politicising the judicial branch,” says John Stremlau, honorary professor in Wits University’s department of international relations.
“The leak is a side story, but it is indicative, similar to the White House and Congress, of partisans making the court part of the political polarisation.”
In the leaked decision, Alito writes: “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. We hold that Roe and
Casey must be overruled. The constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.”
(“Casey” is a reference to another Supreme Court ruling that also affirmed the right to abortion.)
Alito’s decision seems to be entirely political, albeit impeachable, given that in 1787, when the US constitution was written, medical science wasn’t advanced enough to make abortion an issue.
Nevertheless, his 98-page opinion would overturn Roe and reverse a lower court’s decision in Dobbs vs Jackson Women’s Health Organisation in December 2021, which struck down a law in the state of Mississippi banning abortion after 15 weeks of pregnancy.
In the likely event that Roe and Casey are overturned, access to abortion would then be decided at the state level.
The Center for Reproductive Rights, a global advocacy group, estimates that abortion would eventually be banned in half of the 50 states.
Alito’s decision runs counter to majority public sentiment on the issue. A Washington Post-ABC News poll conducted between April 24 and 28, before the leak, found that 54% of Americans believe Roe should be upheld, while 28% want it overturned.
Yet the decision is not altogether surprising, given how judges in the US are appointed, for life, along partisan lines.
Currently, the court comprises six conservative justices, including chief justice John Roberts jnr and Alito, both appointed by Republican presidents. Three others, appointed by Democratic presidents, are considered more liberal. The impending retirement of one liberal justice saw the first black woman justice, Ketanji Brown Jackson, confirmed in April.
This has heightened the view that the US justice system is increasingly becoming less about principle and more about political loyalty.
SA, through the Constitutional Court, has avoided this path. Judges have largely applied the law consistently.
Stremlau says overturning Roe vs Wade stands to obliterate long-held rights in the US, including reproductive choice. “The court has to be trusted by citizens to serve as a dispassionate and objective referee and that’s what is really at risk here, with this opinion,” he says.
Last week, Senate majority leader Chuck Schumer, a Democrat from New York, said his party would call a vote to codify abortion rights into federal law.
But without the necessary support in the Senate, this is more about Democrats sending a political message ahead of the midterm elections in November.
Democrats face off against Republicans in 35 Senate seats in November. If Republicans regain control of the Senate
which is now split evenly between the parties, with Vice-President Kamala Harris holding the casting vote they are expected to create legislative roadblocks to President Joe Biden’s agenda, while stalling confirmation hearings for his judicial nominees. Whichever party controls the Senate, controls the gavel that confirms Supreme Court justices.
Alito writes: “It is time to heed the constitution and return the issue of abortion to the people’s elected representatives.” Which, in turn, would lead to abortion likely being banned in large parts of the US. It is hard to see this as anything other than a regressive step.