Editorials

The Irish Times view on changes afoot in US abortion law: a legal-political earthquake

The court’s attack on the implied rights doctrine, and the ease with which it appears ready to abandon precedent, could potentially endanger legal protection for rights ranging from same-sex marriage to contraception

A pro-choice demonstrator outside the US supreme court in Washington following a leaked draft opinion that suggested the court would vote to overturn Roe v Wade. Photograph: Sarahbeth Maney/The New York Times

Tue May 3 2022 - 18:30

Almost 50 years after the United States supreme court established a constitutional right to abortion, the striking down of that landmark decision is now a real – perhaps imminent – prospect. The court in Roe v Wade found that the right of privacy encompassed a woman's decision to terminate her pregnancy. It was a watershed moment for women's rights in the US and profoundly affected abortion debates across the world, including in Ireland.

Its retention is supported by a clear majority of Americans, opinion surveys consistently show, but overturning it has been one of the central political-legal projects of modern US conservatism.

A leaked draft opinion in a case now being decided by the supreme court suggests that that project is closer than ever to realising its goal. The draft may not be final, and voting intentions on the court could change, but if the judges follow through on the decision reportedly written by Justice Samuel Alito, they are about to engineer a radical shift in American law – and in the life of the country itself. Depending on its wording, the move could result in about half of states banning abortion, including several states that have passed so-called trigger laws which would automatically ban abortion once Roe is overturned. Those most likely to be affected are the poor and those, in particular in the South and the Midwest, who could not easily travel to states where abortion remained legal.

The damage to the supreme court and to the US political system would be deep and lasting.

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If the legal counter-revolution in Washington can strike down Roe, there is every reason to believe it may not stop there

The overt politicisation of the court as a partisan actor in current affairs has been very clear since it decided the 2000 election in favour of George W Bush and proceeded to steer US law in a conservative direction under its activist, Republican-appointed majority. The divisions that can make the country close to ungovernable would only worsen if Roe is struck out, and the political fallout would shake national politics in unpredictable ways.

But the biggest aftershock would be that felt by the millions of American women who have grown up in a country where Roe was settled law and the freedom to choose was accepted as a fundamental right. Only Poland, El Salvador and Nicaragua have tightened abortion laws this century. Many more countries, including Ireland, have liberalised theirs. And if the legal counter-revolution in Washington can strike down Roe, there is every reason to believe it may not stop there.

The court’s attack on the implied rights doctrine, and the ease with which it appears ready to abandon precedent, could potentially endanger legal protection for rights ranging from same-sex marriage to contraception. That attempt to roll back a half-century of social progress and effect a wholesale reorientation of American life is now the chief battleground of American politics.

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