The United States Judicial system has come under much scrutiny over the past few years due to the politicization of the court under the Obama, Trump and Biden eras. At present it looks likely that this issue will come to the fore yet again in the coming days, as the ever-looming spectre of Roe v Wade, rears its head yet again at a particularly fraught moment in US politics.
For those unacquainted with US abortion rights, the story has been a particularly long fought one which has been in permanent danger of being overruled in the preceding years. The primary issue lies in the way abortion rights were implemented in to the American legal system. As they were introduced by way of precedent as opposed to statute.
Precedent allows that the decisions which were made in the past must be followed in subsequent decisions, however it is also possible to be overruled by the decisions of the higher courts. Whereas, statute allows for the codification and entrenchment of such positions into the legal system of the country by way of legislation.
With an issue as great as abortion rights, in a nation with a large evangelical community, the folly of the prior decision seems to be coming to the fore in recent years.
The United States Supreme Court which will hear the upcoming case, has seen a tidal shift in terms of ideology following the three appointments secured by Donald Trump during his tenure as President. While an entire article could be created based around the hypocrisy of the now Senate Minority Leader Mitch McConnell regarding his approach to Judicial appointments, yet that is not the point of this piece. Rather the primary determining factor is that at present there are six conservative leaning Justices on the Supreme Court as opposed to the remaining three liberal leaning Justices.
Roe v Wade was initially decided close to half a century ago, yet it has remained topical and controversial ever since, as the individual States have at times sought to limit the provisions of such to varying degrees of success.
The most recent attempt at such comes from the State of Mississippi and concerns a limitation on Women’s rights after the foetus has reached fifteen weeks. This was initially struck down by a court of superior jurisdiction, before the appeal was made eventually reaching the Supreme Court.
Individuals on both sides of the divide are currently waiting with baited breath for the decision which will be handed down, as it could potentially serve to overrule the decision made in Roe v Wade. In what would be a vindication of sorts for the evangelicals who supported Donald Trump and effectively paved his way to the White House.
Supporters of the anti-abortion movement have allowed that in taking up the case the Supreme Court have shown a willingness to support the right to life of the foetus. While many among their ranks have expressed much in the way of confidence that it will be upheld as constitutional.
However, for those who support Women’s rights and have ardently fought for their survival, this has potentially been viewed as a death knell for the availability of abortion as it stands in the United States. The pervading belief is that the Court, even in accepting that this case deserves to be held, are perpetrating the idea that the court is therefore at the very least willing to revisit and question Roe’s viability.
In the past year a similarly restrictive law was struck down in Louisiana, however it is important to note that this was done on a 5-4 majority as part of a more balanced Court which no longer exists following the passing of Justice Ruth Bader Ginsburg. While the Judgement of Chief Justice John G. Roberts, also indicated a lax approach to evaluating such restrictions which could allow for the general scaling back of abortion rights across the country.
What comes next could have a colossal impact on the lives of millions of women across the United States. This continued assault on Roe v Wade, at the state level may have been a gradual one in the preceding years, yet the decision which follows could provide an end date for this persistent erosion.
Whether this could ultimately lead to a statutory amendment being made following the failure of such a precedent oriented solution to what is essentially a matter of the utmost complication remains to be seen.
The coming weeks will tell a lot however and even if a negative result for those in the pro-abortion camp is achieved, it will still remain uncertain as to how the individual States will implement the new found approval from the highest Court.
All told however it remains a frightening moment for the most vulnerable members of American society who may be left devoid of such substantial rights by virtue of the State they find themselves residing in.