The first time, it was to protect the 650,000 “Dreamers,” the young immigrants whose status was formalized under the Obama administration.
The second time, to protect LGBTQ+ minorities against employment discrimination.
And on Monday, for the third time in two weeks, United States Supreme Court Chief Justice John Roberts sided with the four progressive judges of the Supreme Court, This time for the extremely important matter of women’s right to abortion. The court struck down a Louisiana law which would have greatly reduced access to abortion in that state. (The number of abortion clinics would have been reduced from three to only one.)
This is the first time the United States Supreme Court has ruled on the right to abortion since the arrival of the two justices appointed by Donald Trump, Neil Gorsuch and Brett Kavanaugh. In the highest court in the United States, there is now an informal bloc of five conservative judges (including Chief Justice Roberts) and an informal bloc of four progressive judges. If they vote as a bloc, the conservative judges have a majority. However, Chief Justice Roberts aligned himself with the progressive judges in this case. A wise decision for the independence of the court, the rule of law and women’s abortion rights.
From our perspective in Quebec, where women have had the right to abortion since the end of the 1980s, and where 86% of Quebeckers are in favor of the right to abortion, debates on this issue in the United States seem surreal.
And yet, almost 40 years after the famous Roe v. Wade decision granting women the right to abortion as a protected right to privacy, Americans have to continue fighting in the majority of states for access to abortion in practice. This is the case even though 61% of Americans support the right to abortion.
For a decade, rather than tackling Roe v. Wade head on, opponents of abortion have relied on another strategy: making access to abortion increasingly difficult. This is how Louisiana adopted a law forcing doctors practicing abortion in a clinic to be affiliated with a hospital in the same region. The official reason cited by Louisiana was to ensure the quality of medical care. Except that the four progressive judges of the court were not fooled; in this case, it was a way of reducing access to abortion. In practice, if the law had been upheld, the number of doctors performing abortions would have been reduced from six to just one in all of Louisiana.
The four progressive Supreme Court justices held that in any case, the court settled the issue four years ago when it struck down an identical law in Texas.
Chief Justice Roberts said this latest decision by the progressive judges was supported by precedent, even though he voted with the conservative bloc to uphold the Texas law four years ago and continues to believe that the case was wrongly decided.
Of course, a court can always change its mind on a particular issue, but it requires exceptional circumstances, a major reason and/or a significant change in the situation. Not simply because we think we have the votes four years later.
There are two major lessons to be learned from this judgment.
First, Roberts places great importance on the independence of his court. In this case, he put the independence of the court and the rule of law before partisan issues.
Second, the fight for women’s rights to abortion in the United States is unfortunately not over. For supporters of abortion rights, Roberts did not offer a victory as much as a truce. There are currently about 15 abortion rights cases before federal courts of appeal, and the Supreme Court may be tempted to hear some of these cases. Not to mention that the next occupant of the White House could be called upon to choose up to two Supreme Court justices during his term. The issue is therefore far from resolved.
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