The United States Supreme Court overturned Roe v Wade this morning.
Here is what you may not know.
1. The Actual Decision.
Roe v Wade did not grant an absolute right to abortion in The United States of America. The Wiki page actually summarizes the decision very well...
During the first trimester, governments could not regulate abortion at all, except to require that abortions be performed by a licensed physician.
During the second trimester, governments could regulate the abortion procedure, but only for the purpose of protecting maternal health and not for protecting fetal life.
After viability (which includes the third trimester of pregnancy and the last few weeks of the second trimester), abortions could be regulated and even prohibited, but only if the laws provided exceptions for abortions necessary to save the "life" or "health" of the mother.
The United States Supreme Court had an opportunity to not overturn Roe v Wade, but to confirm it today. In reversing that decision, they made a terrible mistake.
Enforcing Roe v Wade could have involved overturning a later decision called Planned Parenthood v Casey that abandoned the trimester distinctions in Roe v Wade, and opened up abortion to any point in a woman's pregnancy. While that would have limited access to abortion in the USA, confirming Roe v Wade could also have provided a balanced position between the two solitudes in the United States; between those who see abortion as the hallmark of freedom and women's rights, and those who see it as murder.
More specifically, had the Supreme Court chosen to confirm a right to abortion in the first trimester; limited ability of states to restrict abortion in the second trimester; and supported an outright ban in the third trimester except in situations of risks to the health of a woman, incest or rape, they could have set up a situation where both sides could claim a victory of sorts in this fifty-year culture war - those supporting abortion could have seen access confirmed in the first trimester and in a more limited way in the second trimester, and those opposed to it would see access disappear in the third trimester. With the court having made clear that there would be no outright winner here, a relaxation of the tensions in that country could have set in over time.
Instead, five justices of the Supreme Court overturned the entire decision. This situation may rip the United States apart, meaning what may be the most aggressive and even violent congressional elections in a century this November. The Court may have set in train a new series of events that could have profound implications for national unity in the USA.
2. Bork Triumphant.
Roe v Wade made no sense. This decision found a right to privacy containing a right to abortion in the United States Constitution that isn't written anywhere. The arguments for its repeal have been obvious for anyone who bothered to use their brain since the day the decision was rendered.
How bad was this decision?
When I was in university, Roe v Wade was the sole subject of a final test in a course on logic. Students were asked to just read and comment on the decision. The right answer was that this decision made no sense from a logical and reasonable perspective because you can't find rights in a document where there is absolutely no mention of those same rights.
The most prominent proponent of the repeal of this decision and the need to resort to the literal wording in the United States Constitution was probably Robert Bork. He called what the court did in Roe v Wade "Judicial Imperialism" as he thought it showed a tendency on the part of the court to make up or find rights in the constitution that were not there, simply because they suited the court's policy preferences and not the original intent of the framers of the US Constitution, which he though should be the basis of all interpretation.
Bork's nomination to be a justice of the court in 1987 was rejected by Congress because of his view on judicial intervention versus original intent. Translation - it was obvious to Congress that he would have voted to repeal Roe v Wade, so he was rejected.
He didn't hide his intentions. When standing for confirmation, he actually said this to the committee tasked with approving his elevation to the highest judicial office in the land..."I am convinced, as I think most legal scholars are, that Roe v. Wade is, itself, an unconstitutional decision, a serious and wholly unjustifiable judicial usurpation of state legislative authority,"
And so, Bork never sat as a justice of the Supreme Court. But please compare his brutally honest assessment re Roe v Wade when he was questioned by the committee on the subject under oath, with the disgusting lies spewed by the five sitting Conservative justices of the court who, when asked if they "respect precedent" - as in, would they uphold Roe v Wade which was judicial precedent at the time - all said that they would.
They lied...he did not. Bork stands redeemed today, not only for his theory of judicial interpretation, but more so for his refusal to lie to Congress under oath in aid of his personal and political ambitions.
3. The Left's Missed Opportunity and The Future of Gay Marriage.
The Left in the USA has had fifty years to move forward an amendment to the Bill of Rights that would confirm a right to privacy and abortion in the United States Constitution. Had they done so, no Supreme Court could not have done anything about it, as even someone putting forward an "original intent" argument would have had to conclude that such a right does exist.
Instead of securing the right as an amendment, the those who favour abortion have relied for almost fifty years on the US Supreme Court to protect this right. Today, the Supreme Court laid bare what, as noted above, has been obvious since the day that Roe v Wade was rendered back in 1973; this decision was very vulnerable to being reversed some day.
Going forward, those who favour abortion on demand will likely try to get back to the court with other cobbled-together rationales for a right to abortion, including the right to equal treatment under the law. They will likely argue that restricting a woman's right to abortion renders them unequal to men, so a right to abortion must be supported. Similar arguments were made regarding the right to gay marriage in the USA, where homosexual couples argued that denying them the right marry rendered them unequal to those who could marry, namely heterosexual couples.
No one knows how this Supreme Court would rule should such arguments be brought forward. However, if the Conservatives on this court are bold enough to reverse a fifty year old decision like Roe v Wade after promising under oath to Congress to not do so, one would think that Obergefell v Hodges, which is the case which legalized gay marriage only in America in 2015, is also be under very serious threat.
4. The Culture War is Full On.
I think this Conservative court sees itself as engaged in a counter attack in a fifty year long culture war. If so, this is a turning point in the history of the United States of America where the Left has largely been ascendant for the last few generations, but the Right is now able to strike back.
Other countries had thirty-years wars and hundred-years wars over differences concerning royal successions and religious beliefs. The results laid those countries low for decades. And so, we may see something similar in the near future of America.
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