Abortion Debate in the US: Where the Reactionary Supreme Court Justices Might Be Right

It is catastrophic that the U.S. Supreme Court wants to overturn the right to an abortion. But this development is also rooted in much older mistakes. A commentary.

If the Supreme Court overturns abortion rights that have been in place until now, it will be catastrophic. If the final ruling aligns with what Justice Samuel Alito wrote in his draft opinion, the Roe v. Wade ruling will be struck down to such an extent that individual states will themselves be able to decide whether to restrict or ban abortion. The result would be that half of the U.S. would have liberal laws, while the other half would have restrictive ones, or even a blanket ban.

What is more difficult than — justifiably — being incensed by these developments is to answer the question of how it has come this far. “Donald Trump” is the answer given, as well as the conservative rollback that has defined global power according to this catchword. Reference is made to the efforts that have been made for many years — which have ultimately been successful — to install a reactionary Republican majority on the Supreme Court.

Those who take this view are right in the sense that in the U.S., who gets appointed to the judiciary is a far more political issue than in the likes of Germany. It is also true that rulings in the U.S. are more likely to be perceived as partisan. Some U.S. justices joke about the blind trust that Germans place in their Federal Constitutional Court, as if it were an oracle offering them a higher understanding.

30 States Had Bans on Abortion before Roe

But is that a sufficient explanation? Alito’s draft reads like a political manifesto. At the same time, it mentions criticisms that have accompanied the Roe ruling since it was decided in 1973. Alito writes that 30 states had bans on abortion back then, which were dissolved by Roe. This was a ray of hope for affected women, but simultaneously a highly political, conflict-ridden signpost put into effect by means of legal interpretation and not codified by majority vote. With Roe, the Supreme Court established a “right to privacy” that gave women the right to choose whether to have an abortion. It took on the role of a legislator.

A Feminist Also Found the Ruling Questionable

The accusation of division that is now being made against the Supreme Court was also made back then. On top of that, as Alito writes, the justices had a hard time aligning their vote with the Constitution. It is true that, from today’s perspective, there are many arguments in favor of recognizing access to a medical abortion in the early weeks of pregnancy as a human right. However, back then the debate had not gotten to that point and there were other traditions in the U.S. Alito quotes the late former Supreme Court Justice Ruth Bader Ginsburg, a fierce liberal fighter for women’s rights who died in 2020. She felt that Roe was questionable, as the ruling came too early and did not give states enough elbow room. The ruling gave pregnant women the sole responsibility to decide about their pregnancy up until the sixth month.

In Germany, Legislators Took on the Role of the Liberalizer while the Court Applied the Brakes

This inherently unresolvable conflict was tackled the other way around in German law. In Germany, the legislator took on the role of the liberalizer, while the Federal Constitutional Court imposed limits. Twenty years after Roe revolutionized abortion law in the U.S., the Federal Constitutional Court in Karlsruhe quashed the time-limit solution, allowing abortion with impunity in the first three months of pregnancy.

A Middle Course in a Difficult Situation?

The guiding principles from back then appear confusing today. The court spoke of a “fundamental legal obligation to carry the child to term” and stated that termination “must be viewed as fundamentally wrong and thus prohibited by law.” The reality is, however, that the model that was derived from this — which undoubtedly features many elements that are worthy of criticism — did bring social peace and ensure that affected women can get access to medical help. Roe never succeeded in achieving this, which Justice Alito points out. One can only hope that a middle course can be steered in the U.S. — and that it does not go radically in the other direction. Even in difficult situations, steering a middle course can be the right approach.