Unless the Roe v Wade leak sparks a powerful resistance movement, dark days seem certain to arrive

Editorial: Women have not spent the best part of the last two centuries struggling for their human rights to just shrug and give them up now

(Dave Brown)

So, America puts the clock back. If the unprecedented leaks about the inner thinking of the US Supreme Court are correct, one half of the population of the country are about to have a fundamental human right cancelled.

Since 1973, the Roe v Wade judgment has not only protected the rights of women in the United States to do with their bodies what they wish, but acted as a beacon of hope to a world where, even now, dogma and patriarchal oppression has forced women to carry foetuses they do not want – and in extremis, to lose their lives in giving birth to them.

In a few months, the judicial protection of Roe v Wade will simply disappear. Some states have already passed draconian anti-abortion laws in eager anticipation of the barbaric cruelties to be inflicted on vulnerable and terrified women, whose only crime was to get pregnant (too often, without consent). Others will now be emboldened to restrict the right to a lawful termination further. The consequences are not difficult to foresee.

As in the days when abortion was illegal in America (and still the case elsewhere even now), those women who have the means to travel and obtain treatment will be able to do so. The ones who are not, in a country with inadequate health care, will be the poorest – and that means that women of colour will be disproportionately affected.

We know from history what happens next: back-street abortionists will thrive, with even greater risks to life inflicted on women. There will be cruder and more dangerous attempts at self-termination. It is difficult to believe that such a thing could happen in America, but unless this leak sparks a powerful resistance movement, dark days seem certain to arrive for the poor women of the south and other supposedly God-fearing regions.

Human rights should not vary state by state like liquor laws or license plates.

There will be resistance. There already is. After the draft majority judgment seeped into the public domain, the demonstrations and reaction on social media presage a fierce fight to come. Women have not spent the best part of the last two centuries struggling for their human rights to just shrug and give them up now. There is talk of a new federal law, of President Biden appointing additional judges, and of other lawful ways to challenge what the Supreme Court appears set on.

The chances are, though, that the court will not be moved by popular protest, and the attempt to circumvent its force through presidential and congressional action will fail, such is the relative weakness of the Democrats’ position, and the prospect of conservative and Trumpite Republican gains in the mid-term elections. Time is against the forces of progress, at least for the time being.

As has always been the case, and despite the conscientious efforts of its membership, the US Supreme Court is a deeply political creature. Arguments between judicial “activists” and “constructionists” over state rights or the intentions of the Founding Fathers are often mere covers for a more familiar scrap between progressives and conservatives. As has so often been the case in American politics in recent years, the conservatives have often had the whip hand.

Distinguished lawyers, no different to anyone else, have their views on social and political matters – it would be surprising if they did not – and are subject to the same trends in the climate of opinion as any other citizen. The rise of religious conservatism in the United States over the past four decades or so has changed powerfully the social and political context of politics, and the courts, and weaponised “conscience” issues that had previously been kept out of partisan politics.

The capture of the Republican Party by the religious right was the precursor and enabler of Trumpism, and the movement, with its preponderance in the less populous states, isn’t going away. Through Congress, the presidency and the courts, its growing influence is now such that it can abolish a fundamental human right.

The fundamentalist Christian movement and the shift in public opinion to the conservative religious right is what has brought to an end the conditional right to abortion because without this long term trend, Roe v Wade would have been left alone. Arguably, the imposition of a religiously inspired restriction on the liberties of free Americans wasn’t what America was supposed to be about.

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Although safely insulated from day-to-day political interference, public opinion slowly and eventually makes itself felt in the complexion of the court. Presidents inevitably appoint justices in their own image, and that can be a matter of chance. Had Justice Ruth Bader Ginsburg not died in 2020, then America might not be staring into this abyss now.

If a president has won a second term and is in possession of a landslide victory, as Franklin Roosevelt was in the 1930s, they can impose their will – the popular will – to overcome judicial resistance. When public opinion favoured racial segregation, the Supreme Court, after a lag, gave it a legal respectability.

Later, in the more enlightened Eisenhower era, the horrors of petty segregation, such as on buses, began a series of landmark civil rights judgments in the Supreme Court. That is how the checks and balances are supposed to work: the court being independent but not an alien institution, remote or even hostile to the people it serves.

The worrying thing now is that there seems little that can now be done by the executive or the legislature to redress the balance and restrain the judiciary from imposing its will on the people of America – or rather on the women, because if it was about only the bodies of men, this denial of human rights on the basis of gender would not happen.