American Courts vs. Women

In order for a judicial system to work, people must believe in it. One could say that a good number of conservatives are losing sight of this principle in the United States, where Trumpism continues to wreak havoc.

And where abortion rights have never in 50 years been so under threat.

A U.S. Supreme Court justice sought to issue a warning as the court weighed in on the Mississippi law banning abortions after 15 weeks of pregnancy.

“We have to have public support and that comes primarily from people believing that we do our job,” said Supreme Court Justice Stephen Breyer, one of three progressives out of the nine justices on the bench.

Their job? That of justices, independent, impartial and pragmatic — justices who fundamentally are not “simply politicians,” Breyer said.

This debate is intensifying because the Supreme Court could outright overturn the Roe v. Wade decision which legalized abortion across the country. Most observers agree that it is not looking good for this crucial ruling, and that if the court does not overturn it, it may well limit its reach. A majority of justices could, for example, rule to outlaw abortions after 15 weeks of pregnancy, which is what Mississippi wants. In either of the two cases, the verdict would be both historic and dramatic, with grave consequences for women.

Here’s a brief reminder. According to decisions rendered in recent decades, abortion cannot be outlawed before a fetus is deemed viable, which is around 24 weeks. This explains the warning by Justice Breyer, who believes that if the Supreme Court issues a ruling restricting the right to choose, it will appear political, particularly given that such a decision would occur solely because Donald Trump was able to name three conservative justices to the bench.

Breyer, now 83 years old, wrote a book about 10 years ago shedding light on the workings of the Supreme Court. In it, he addressed head-on a principle of utmost importance for the case currently before the court and, according to which, past decisions should generally guide future ones. That is, there is a “need to maintain what has been decided,” or abide by stare decisis, in Latin.

In addition, Breyer addressed the importance of stability.

“Stability makes the judicial system and the law itself workable. Without stability, the Court’s decisions seem ad hoc and unpredictable — not part of a system at all. This is contrary to the Constitution’s objectives and tends to undermine public acceptance of the Court’s decisions,” Breyer wrote.

The court has reversed past rulings, of course. Society evolves and certain decisions become flatly untenable. For example, in 1896, the Supreme Court concluded that a railroad company could force Black travelers to ride in different cars than white passengers. Several decades later, it would conclude that segregation was unconstitutional.

Conservative justices cited these overturned decisions Wednesday to show that, yes, the highest court in the land does review its own decisions.

But justices, like citizens, know very well that any decision rendered on abortion touches on a fundamental right for women, that of liberty. And American citizens know as well that if Roe v. Wade is overturned, or weakened, it is not because public opinion has changed. Neither would it be proof of progression in American society. Rather, it would be a means of moving society backward — an archaic expression of the ideology of justices, nominated by conservative presidents, reinterpreting the right according to their convictions because they think that their predecessors erred in legalizing it.

Both this upcoming decision and its repercussions could further undermine the legitimacy of the Supreme Court, as there will be dramatic consequences for women who seek an abortion at any cost if the procedure becomes illegal in a significant number of states.

In a country so outrageously divided, and where confidence in democratic institutions is in free fall, this would be very, very bad news. Even before this ruling is rendered, this case offers food for thought.

We are reminded that debates on abortion, which are surfacing again in every federal election campaign in Canada, are far from futile. We must defend this right tooth and nail.

We are reminded, as well, that we can take nothing for granted — that even our most dearly held rights are not irreversible. And that the independence and legitimacy of our courts are invaluable.