On May 2, the document published by Politico news website shook the US; and made abortion the primary topic of discussion in the country. The aforementioned document is the draft majority opinion of the Supreme Court regarding an abortion case. Here’s a short background on why this document matters…
Is abortion outlawed in the US?
No, abortion is still legal in the US. The document leaked to press on Monday is not the final ruling on the pending Dobbs v. Jackson Women’s Health Organization case at the Supreme Court (SC). It is a draft that reflects the current majority opinion (although it is not confirmed, it states that 5 out of the 9 justices agree with this draft opinion).
Normally, the public does not see the draft rulings of the SC. After the oral arguments are heard before the court, one of the justices draft the majority opinion during the discussions that follow. In some cases, dissenting opinion/s are also written and included in the draft. Then, a process, during which the justices who have initially agreed with the opinion of the court can change their positions, is launched, and goes on for a couple of months. At the end of this process, the opinion that qualifies as the majority opinion or that has won over others, is publicly delivered as the official decision of the court – which means that the text circulating in the press is not yet a law that has entered into force. [1]
Then, what is at stake, and what to expect in the next few days?
There is almost no possibility that the justices will change their positions on the aforementioned case. In other words, in the absence of serious interventions (I will explain what I mean by serious interventions in the next section), it is almost certain that the draft opinion will be the final ruling of the court. In the event that it is the decision of the court, abortion will not be banned countrywide since, currently, there is no federal law on abortion. The issue is at the discretion of states. The 1973 Supreme Court ruling in Roe v. Wade sets a precedent for abortion cases and is binding for all states. However, the function of the Roe v. Wade is not legalizing abortion but to rule that the states’ ban on abortion violates the right to privacy. That means as long as Roe v. Wade is not overturned, states cannot to pass laws to ban abortion outright. Since 1973, there are states that have continuously tried to restrict abortions, even render them impossible without an outright ban. For decades now, the SC has stopped enforcement of certain laws that restrict access to abortion and provision of such services based on the Roe decision. For instance, the 1992 Supreme Court ruling in Casey v. Planned Parenthood secured the general provisions of Roe, despite its more limited framework.[2]
Today, it is almost inevitable that general provisions in Roe are under attack, especially considering that the justices appointed by Republicans have the majority at the SC. What that means is that the barrier against these bans will be lifted in states where they have the majority at the state parliament. There are already 22 states where abortion is one way or another legally restricted or banned. Once Roe is no longer binding, these laws will automatically go into effect.
How is this happening in a period when Democrats are in control?
Why is this 50-year-old Republican project, which could not be undertaken even during the Trump era, so close to realization during Biden’s presidency, especially when Democrats have the majority in the two houses of the Congress?
Although the Democratic Party has a relatively liberal stand on certain issues, and primarily on abortion, the “institutional” body of the party is rather conservative (Openly right-wing constituents, such as Manchin and Cinema, who have attracted a lot of attention in recent months, are a different bet). This translates into politics as the party’s inability to make policies in the Congress when they were in the minority (including Obama’s failure to fill a vacant SC seat a year before his term expired; however, Trump was able to appoint Amy Coney Barrett, a staunch Catholic—almost openly anti-abortion—a month before his losing November 2020 election), and ineffectiveness when in the majority. Now, after two years of Biden’s presidency, there is generalized disappointment around the fact Biden, an institutional/conservative Democrat himself, does not try to suppress these tendencies in the Democratic party, and that none of his election promises are realized.
Thus, the institutional wing of the Democrats could not even raise their voices, let alone devise effective policies, against Republicans replacing vacancies at the SC with justices who are flag bearers of their views. Since day one of his presidency, Biden has not been keen to change the procedures that serve as a barrier against Democrats to prove their existence in the Congress. It’s rather his and his party’s conservative reflexes that have held him back. At this point, despite seemingly holding key positions of power in every arena, the Democratic Party has no power.
What can be done then?
SC justices are appointed for life; once they are appointed, they do not have to worry about re-election or removal from their post. Therefore, it is not that easy to create pressure over the justices.
But Democratic party politicians are subject to these customary rules of politics. Moreover, the only juncture where Democrats, who are conservative within the abovementioned capitalist framework, can differentiate themselves from their Republican counterparts is around issues considered “cultural”, like abortion and gay marriage.
Therefore, most Democrat politicians will find it difficult to afford another defeat, such as withdrawing the right to abortion, on top of all the disappointing promises of the last two years – especially the economy.
This context, where the Democrats hold both the Presidential seat and the majority in both houses of Congress, may hold the key to holding them accountable – definitely, through a very high level of pressure exerted on them by the voters. Abortion rights defenders have been advocating to pass a federal law that recognizes abortion a positive right, rather than leaving the issue at the mercy of a SC decision (to crown it all, based on Roe’s inconclusive basis on the right to privacy). Although Biden does not seem too keen (his first reflex was to place the responsibility on the voters, and to call for votes to Democratic candidates during the midterm elections coming up in November 2022), he had to say he would approve such a bill. It’s high time to increase the pressure on the Democratic Party, and the politicians who are afraid of such determined actions, to pass this law. Moreover, this struggle has the potential to speed up implementation of Democrats’ long-promised social and ecological policies.
From the moment the draft resolution was leaked to the press, women took action in all major cities of the country, especially in front of the Supreme Court and the Congress buildings. Much larger actions are planned for the weekend. It’s hard to be optimistic right now, but the meaning and potential of these actions are indisputable. It is essential to do everything we can to increase the pressure on Democrats before we see what the next days will bring.
[1] The legal system in the US is not based on the parliamentary enactment of detailed laws on each subject, but on the jurisprudence established by the courts to decide on the vague areas of relatively few laws. Certain cases start in the local courts, and can reach the Supreme Court, the constitutional court of the USA through the appeal process. The decisions reached at the Supreme Court are binding for lower courts and legislators alike. Roe v. Wade case, which will continue to set a precedent until a new decision is reached, as well as Dobbs v. The Jackson Women’s Health Organization case went through this process and became a federal issue.
[2] The Roe case began by taking a Texas law outlawing abortion –except in cases of rape, incest, or when the pregnant woman’s life is in danger– to court. The SC decision stated that this law contradicted the right to privacy defined in various articles of the Constitution. It included a provision stating, as a constitutional right, privacy cannot be violated but it has its limitations, alongside definitive judgments on how to determine these limitations. For instance, states can impose week-limits based on these provisions. Almost 20 years after Roe, Casey stretched the terms that defined the right to privacy, which paved the way for passing of laws that restrict provision of and access to abortion services in certain states in the past 30 years, primarily in Southern state– banning provision of abortion services outside of general hospitals, for instance. Dobbs case, recently heard by the SC, is about a Mississippi law outlawing abortions beyond 15 weeks of pregnancy.
For the original in Turkish / Yazının Türkçesi için
Translator: Deniz İnal
Proof-reader: Müge Karahan
