In a historic about-face, the ultra-conservative U.S. Supreme Court on Friday buried a ruling that for nearly half a century had guaranteed American women's right to abortion, but did not had never been accepted by the religious right.
This decision does not make terminations of pregnancy illegal, but returns the United States to the situation in force before the emblematic judgment “Roe v. Wade” of 1973, when each state was free to authorize them or not.
Given the fractures in the country, half of the states, especially in the more conservative and religious south and center, could banish them in the more or less short term.
“The Constitution makes no reference to abortion and none of its articles implicitly protects this right,” wrote Judge Samuel Alito on behalf of the majority. Roe v. Wade “was totally unfounded from the start” and “must be overturned”.
“It is time to return the issue of abortion to the elected representatives of the people” in local parliaments, he writes again .
This wording is close to a draft ruling that was previously leaked in early May, sparking major protests across the country and a wave of outrage on the left.
Since then, the climate has been extremely tense around the courtyard, where an imposing security barrier has been installed to keep protesters at a distance. A gunman was even arrested in June near the home of magistrate Brett Kavanaugh and charged with attempted murder.
The judgment published Friday “is one of the most important in the history of the Supreme Court since its creation in 1790”, notes health law professor Lawrence Gostin. “It has already happened that it changes its case law, but to establish or restore a right, never to suppress it,” he told AFP.
The decision goes against the current of international trend to liberalize abortions, with progress in countries where the influence of the Catholic Church remains strong such as Ireland, Argentina, Mexico or Colombia.
It crowns 50 years of a methodical struggle waged by the religious right, for whom it represents a huge victory, but not the end of the battle: the movement should continue to mobilize to bring as many states as possible into its camp or to try to get a federal ban.
It is also part of the record of former Republican President Donald Trump who, during his mandate, profoundly overhauled the Supreme Court by bringing in three conservative magistrates (Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett) signatories today today of this decision.
In concrete terms, this relates to a Mississippi law which was content to reduce the legal time limit for an abortion. From the hearing in December, several judges had hinted that they intended to take the opportunity to review the Court's case law more fundamentally.
The three progressive justices dissented from the majority, which they said “endangers other privacy rights, such as contraception and same-sex marriages” and “undermines the legitimacy of the Court”.
According to the Guttmacher Institute, a research center that campaigns for access to contraception and abortion worldwide, 13 States have so-called “zombie” or “trigger” laws: prohibiting abortion, they were drafted to come into force almost automatically in the event of a reversal in the Supreme Court.
“In the coming days, weeks and months, we should see clinics close” in these sometimes very populated states (Texas, Louisiana …), anticipates Lawrence Gostin.
A dozen other States should follow with complete or partial bans.
In one part of the country, women wishing to have an abortion will therefore be forced to continue their pregnancy, to manage clandestinely, in particular by obtaining abortion pills on the internet, or to travel to other states, where abortions will remain legal.
Anticipating an influx, these mostly Democratic states have taken steps to facilitate access to abortion on their ground and clinics have begun to shift their staff and equipment resources.
But traveling is expensive and the Supreme Court's decision will further penalize poor women or women raising children alone, who are over-represented in black and Hispanic minorities, point out the defenses rights to abortion.