America is in a war against itself that it cannot win

Fury at a leaked Supreme Court ruling on abortion shows a country tearing its founding principles apart

George Bernard Shaw once described the British and the Americans as “two great peoples divided by a common tongue”. I sometimes feel that though we speak roughly the same language, on a host of issues we might as well inhabit two separate galaxies. This was shown with extreme clarity over the last 24 hours, after the leak of a draft Supreme Court judgment, suggesting that the justices would vote to overturn Roe v Wade – and with it end any national guarantee of abortion rights.

It would mean abortion laws would be determined by individual states and plenty are ready to ban the practice entirely. A dark day for many women living in them: criminalisation is likely merely to drive the procedure underground, with risks for the safety of particularly the poorest women.

Abortion is not just a uniquely divisive issue in the US; but the abortion debate there is unlike any other in the West – one of absolute moral good and evil, and little sense of pragmatism or common ground. Despite their “pro-life” moniker, abortion’s keenest opponents struggle to tolerate it under any circumstances, even when the life of a mother may be at stake, and frequently ignore proven methods of reducing unwanted pregnancy, like sex education.

Hardline pro-choice advocates, meanwhile, often speak of abortion as an unfettered good, rather than a grim necessity. The US has gone to war with itself before, but there is not the slightest chance that it will emerge from this ideological battle with anything close to consensus.

Polarisation has been an unintended consequence of the powerful Supreme Court ever since it began upholding the constitution in a famous case of the 1800s. The system involves judges devoting vast amounts of time to arcane arguments – does the constitution’s right to privacy imply a right to abortion? Does “the right to bear arms” mean the army only? Does the second amendment cover automatic rifles?

In 1973, the court in the case of Roe felt able to argue that, had there been medical abortion on a serious scale at the time the constitution was written, it would have been guaranteed – quite a stretch to read into a document drafted a time when women had no right to anything at all. The end product seems astonishing to the foreign observer; a powerful class of judges trying to interpret what 18th-century people thought, in line with their own views, often while proclaiming impartiality.

This not only creates barriers between people and politics, but it also changes political incentives. In Britain, at least, we can have a fairly open debate about what we actually mean. The legalisation of abortion in 1967 followed a lengthy public discussion and free vote in the Commons, with a level of legitimacy (and losers’ consent) baked into the result. The US system, by contrast, seems to incentivise political gymnastics, the tipping of campaigning energies towards wooing judges and funding court cases rather than seeking to persuade. Whereas legalisation in Britain largely settled the abortion debate, the more underhand nature of Roe vs Wade arguably helped revitalise the conservative movement in the US.

Despite the Supreme Court’s huge power, it can only work with the cases that come to it, so rulings often lack the level of detail you might find in ordinary legislation. The former justice Ruth Bader Ginsburg, though fervently pro-choice, argued that Roe vs Wade was vague, far-reaching and legally difficult to justify, and would prove vulnerable to future attack.

The last 24 hours have certainly made me grateful for Britain’s more fluid, organic constitution. For all our faults, there is much to be said for a set of gradually evolving norms and institutions, rather than deriving such vast existential and national meaning from a single document.

Still, despite growing levels of political division, it did seem as though most Americans were committed to working within the confines of an imperfect system to achieve their aims – or thwart the ambitions of their opponents. Every country needs its institutions, its founding myths and universal truths if it is to function. And for Americans, the US constitution has always been held in almost sacred reverence.

Is it any longer? I fear the US may not be capable of agreeing on anything anymore. Much of what used to hold the country together is under attack from extremes. While the Trumpian Right tramples on constitutional norms, via its “Stolen Election” myth, the hard-left’s frenzied assault on history and the founding fathers threaten the basis of national identity. Endeavours like the New York Times’s 1619 Project seek to rewrite the past, presenting racism not as part of the American experience, but the sum and total of it.

The latest disclosure is already triggering increasingly extreme counter-solutions; everything from burning the court down to intimidating justices. Even the leak itself suggests the withering of norms on an unprecedented scale. Federalism was supposed to be the divided US’S great safety valve – a crucial tool enabling this vast, varied country to function. But the outcry over the leak suggests it has also helped cement tragically irrevocable divisions.