The fact that a judicial decision to overrule Roe v Wade was widely expected does nothing to reduce the profound shockwaves now that it seems to be here.
Late on Monday night (U.S. time), Politico released a leaked 98-page ruling from Supreme Court Justice Samuel Alito, that appears to show that the court has voted to strike down 1973’s landmark Roe v Wade decision that legalised abortion in America.
Alito’s withering draft opinion described Roe as ‘egregiously wrong from the start'. America seems poised to make abortion illegal once more.
The leak itself is unprecedented in the historically impenetrable inner workings of the Court. It’s also not a final decision: Alito’s draft is dated 10 February and historically, Supreme Court jurists’ opinions and decisions on major issues have wavered during deliberations, but let’s not kid ourselves.
In all likelihood, the Court’s formal holding will be published in the next two months and marks a monumental social inflection point in modern American history, one sought for decades by conservative anti-abortion activists, campaigners and politicians.
As with so many issues where politics, religion and power intersect, the decision-making process in the ruling is replete with almost unbelievable hypocrisy and injustice.
Three of the five justices who appear to have voted to ban abortion (a full third of the court) were appointed by Donald Trump, a serial sexual predator, elected to office with three million fewer votes than his opponent.
All three of these – Neil Gorsuch, Amy Coney Barrett and Brett Kavanaugh – were approved by a Senate majority that represents a minority of the American population. All three told Senate confirmation hearings, in one form or another, that they believed Roe v Wade was settled law and now appear to have done the opposite.
Two of the justices – Clarence Thomas and Kavanaugh – were themselves accused of sexual assault by highly credible witnesses at their confirmation hearings.
Yet together, this nefarious bunch hold enough power to now ban abortion, something supported by just 13 per cent of Americans. It’s quite an extraordinary situation.
And it’s hard to see what Joe Biden and the Democrats can immediately do about it. The Court could be overruled by a vote in the House and Senate, but unless the filibuster is overturned (currently impossible due to the intransigence of Senators Kyrsten Sinema and Joe Manchin), they would need 60 votes in the Senate and that’s an impossibility.
Nevertheless, this ruling will cause a political earthquake. It’s likely that there will be civil unrest, possibly immediately, and certainly when the court ruling is formally published.
Pro-abortion rights protesters will encounter highly vocal opposition, and the pro-life movement is also very much pro-gun (try squaring that circle in your head).
America’s streets could turn dangerous this summer. This egregiously unpopular and politicised decision from the Supreme Court is also likely to turn November’s mid-term elections into a one-issue referendum, which could in fact offer opportunities for the Democrat party.
It is possible, essential even, to have a nuanced conversation about women’s reproductive rights. At some point, the small collection of cells at fertilisation grows to be recognisably human, and it doesn’t seem unreasonable to discuss the rights of an unborn foetus alongside that of the mother.
But this isn’t it. If abortion is made illegal in America, the actual abortions won’t stop, they will just go underground.
This ruling is a violent, vindictive assault on women’s rights and not just women who simply want to make their own reproductive decisions. Women with ectopic pregnancies who might die during childbirth. Rape victims. Children who are rape victims, or victims of incest.
All will be forced to give birth by the State in this dystopian new present. Doctors and practitioners who work to help these desperate people will be imprisoned. It’s already on the books in states like Texas, or Tennessee, where a 2022 bill allows rapists’ families to sue if the victim has an abortion.
And this being America, there will of course be a hugely different experience for rich and poor. Rich women will find ways of receiving terminations safely no matter what the law says, perhaps by visiting another country that isn’t in the grip of a modern Handmaid’s Tale.
It’s the poor who will suffer, and in America that predominantly means African Americans and other minorities.
For the so-called pro-life movement, this also isn’t the end game. It is abundantly clear that same-gender sexual acts, marriage equality and further reproductive health measures are firmly in their sights. Young American women wishing to get the pill in order to control their fertility should be profoundly concerned that the Supreme Court may soon consider limiting that avenue of reproductive availability.
This is a catastrophe for America. It shows that the highest court in the land is now fatally compromised by political influence; that the Supreme Court is now willing to hand down decisions that are overwhelmingly opposed by the public; and that the line between militant religiosity and governance has been badly blurred or even erased.
It’s yet another sign of a society facing a profound and possibly existential crisis. And it’s a catastrophic moment for women.
For those Australians who think that this is a distant and remote struggle, consider how empowered the anti-abortion evangelical lobby will be in every Western democracy on earth now.
Consider how George Christensen, erstwhile frequenter of Filipino "night spots" yet champion of Australian state uterus control, feels today. Or Senator Amanda Stoker, who spoke at an anti-abortion rally only last week. Let’s just say that one more time. Amanda Stoker spoke at an anti-abortion rally last week. She is the current Federal Assistant Minister for Women.
The fundamentalist right-wing Christian lobby, of which Prime Minister Scott Morrison is a prominent member, clearly wishes to use political influence to force often unpopular policies on the rest of us and America’s Supreme Court is revealing the naked and aggressive results when their long-term goals are realised.
This decision should ignite indignation and outrage throughout the global community.
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