On June 24, 2022, the U.S. Supreme Court broke the principle of “following precedents” and completely overturned the judgment precedent that has been implemented for nearly half a century and established the U.S. Constitution to protect women’s right to abortion. Women’s right to abortion is no longer a basic human right guaranteed by the Federation. This is one of the landmark events of the contemporary American conservative movement.
Once the ruling was made, the matter was like dripping water into the oil pan, and the United States suddenly boiled. Conservatives and Republicans cheered that this was to correct “historic mistakes”. Liberals and Democrats expressed anger, saying this was a reversal of history. U.S. President Biden said that the U.S. clock was suddenly set back 150 years ago.
A 10-year-old girl seems to be the youngest “affected person” at present. According to CCTV news, according to the US “Capitol Hill” report on July 2, a doctor in charge of treating abused children in Ohio received a 10-year-old patient who was pregnant for six weeks and three days. However, because the abortion ban in that state has taken effect, the girl is going to Indiana for abortion.
Who decides the right to abortion in the United States?
What does it mean to completely overturn the precedent of the judgment that has been implemented for nearly half a century?
Wen Jianmei Xu, researcher of outlook think tank in Houston
Editor | Pu Haiyan outlook think tank
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Who decides the right to abortion?
In the 1960s and 1970s, American society was turbulent and changed violently. One of the watershed events was that at the beginning of 1973, the Federal Supreme Court decided the Roy v. Wade case (hereinafter referred to as the Roy case) with an overwhelming majority of 7 votes in favor and 2 votes against, establishing that the U.S. Constitution gives women the right to abortion (termination of pregnancy before the fetus has the ability to survive outside the womb), It overturned the state laws that at that time about 30 states in the United States completely banned abortion and criminalized abortion at any stage of pregnancy.
On June 26, 2022, protesters held a demonstration outside the United States Supreme Court in Washington, D.C. Figure surging image
At that time, 30 of the 50 states in the United States prohibited abortion under any circumstances, 16 states only allowed abortion in cases of rape, incest and threats to the mother’s health, 3 states allowed local residents to seek abortion, and only New York State had no restrictions.
The roe decision established a regulatory framework for abortion that distinguishes between early, middle and late pregnancy:
Women are allowed to decide on abortion at their own discretion in the early stage of pregnancy (the first three months of pregnancy), but doctors need to be licensed;
In the third trimester of pregnancy, the government can regulate abortion for the purpose of protecting the health of pregnant women;
In the third trimester of pregnancy, states can legislate against abortion.
In 1992, in the case of “family planning” group v. Casey, the Federal Supreme Court overturned this time frame and changed it to prohibit states from imposing “undue burden” on female abortion. Adhering to the principle of “following precedents”, it retained the core judgment of the Roy case that women have the right to terminate pregnancy before the fetus survives, and states cannot prohibit it. ??
49 years ago, federal justices invoked the right to privacy stipulated in the “due process clause” of the 14th Amendment to the U.S. Constitution as the legal basis for protecting women’s right to abortion; Thirty years ago, Casey’s judgment took women’s right to abortion as women’s freedom to “intimate and personal choice”, and called it “the core of personal dignity and autonomy”. ??
The “majority opinion” of the U.S. Supreme Court overturned both the Roy case and the Casey case. It claims that abortion is not mentioned in the U.S. Constitution, and that women’s right to abortion is not “deeply rooted in American history and tradition”, nor “implicit in the concept of order and freedom”, and is not implicitly protected by any constitutional provisions, including the “due process clause” of the Fourteenth Amendment. On the contrary, from the beginning of the common law in the Middle Ages to 1973, the tradition of prohibiting abortion on the grounds of criminal punishment has continued to this day. ??
As for women’s right to their own bodies and the impact of the veto of the right to abortion on society, especially on women’s lives, the Lord Chancellor adopted an evasive attitude in the “majority opinion”, claiming that “this court has neither the power nor professional knowledge to adjudicate these disputes, etc., and the court cannot substitute its social and economic beliefs for the decisions of the legislature”.
Their ruling is: as 49 years ago, whether to prohibit, restrict or protect women’s abortion rights should be returned to the legislature of each state for decision, and each state can regulate abortion with legal reasons. In other words, it is no longer up to the women involved to decide whether or not to have an abortion.
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Dripping water into the oil pan, the United States is boiling
The overturning of the roe case by the Federal Supreme Court was actually expected by all parties. Because as early as early as may, the majority opinion written by the conservative Lord Justice was leaked unprecedentedly. The final published text is highly similar, if not identical. Who leaked it is still a mystery. ??
Nevertheless, as soon as the ruling was issued, American society immediately boiled. From Washington to all parts of the United States, one side celebrates and the other is angry. Democrats and Republicans, conservatives and liberals, reacted in different directions. ??
Biden delivered a national speech criticizing the Federal Supreme Court for “practicing extreme ideology” and committing “tragic mistakes”. Former President Obama used the word “devastating” to condemn. Demonstrations and protests took place across the United States, and the demonstrators were in high spirits.
Sheryl Sandberg, chief operating officer of meta, posted on Facebook that the decision of the Federal Supreme Court “may destroy the progress made by women in the workplace, deprive women of their economic rights, and make it more difficult for women to realize their dreams”. American companies such as yuancosmos, Macy’s department store, snap, vox media and Goldman Sachs also said that they would pay for the travel expenses of abortion for their employees. ??
Conservatives and Republicans are celebrating. An editorial in the Wall Street Journal said that the Federal Supreme Court had corrected “historic mistakes” and repaired its damaged legitimacy. Fox News praised this as “trump’s victory” for the former president, because trump nominated and appointed three conservative justices during his four-year term, which established the overwhelming advantage of conservatives vs liberals in the Federal Supreme Court.
Trump also took the credit, praising the ruling for returning the United States to the “right” track that it should have returned long ago. In Texas, which passed the strictest abortion ban in U.S. history last year, the state attorney general informed about 400000 employees to “stop work” from noon on the same day and take a half day holiday to celebrate. ??
It should be noted that the federal law no longer guarantees women’s right to abortion, which does not mean that abortion will become illegal in the United States in the future. Whether it is illegal or not depends on the attitude of the states in the future. U.S. media predict that within 30 days from the issuance of the ruling, half of the 50 states in the United States will implement laws that prohibit or severely restrict female abortion, and some states will resume the implementation of even the 19th century anti abortion laws. ??
The fact that women’s right to abortion is no longer protected by the Constitution does not mean that the federal government has lost room for action. Biden has asked health secretary besaila to use administrative power to protect women’s reproductive health rights, including abortion.
The measures proposed by the US media include:
Ensure that prescription abortion drugs approved by FDA for use in the first 10 weeks of pregnancy can be mailed across states;
Help women who have to seek interstate termination of pregnancy to solve traffic difficulties;
Use federal Medicaid and Obamacare (affordable medical care act) to help pregnant women and expand the coverage of female contraception.
One foreseeable consequence of the ban on legal abortion is that illegal abortions will increase. The Guttmacher Institute, a research institution, said that due to the ruling, more than 10million women of childbearing age in the United States would have to undergo cross state abortions. American media predicted that a large number of low – and middle-income women would be forced to give birth or risk illegal abortion because they had no money to travel across states. A 2021 study in the American Journal of public health also showed that the maternal mortality rate in states with strict restrictions on abortion in the United States was 7 percentage points higher than that in states with less restrictions.
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Two factions, chicken and Duck Talk
Female abortion right is a political, social, cultural, moral and religious issue with a long history in the United States. Those who support women’s right to abortion are called “Pro choice”; Those who advocate the prohibition or strict restriction of abortion are called “pro Life”. With the polarization of politics between the Democratic Party and the Republican Party, the two parties have firmly adhered to the party label, and their reasons and logic are completely different from each other, and they do not care about each other’s reasons and logic. We can say that we are talking about each other.
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Specifically, the starting point of the “School of life” is that the unborn fetus has the basic right to life. The “fetal heartbeat law” implemented in Texas in September 2021 stipulates that abortion is prohibited once fetal heart activity can be detected, even if a woman is pregnant due to rape or incest. However, usually after five to six weeks of pregnancy, the fetus has heart activity, and most women cannot detect their pregnancy at this time. Conservative anti abortion people believe that the embryo is a complete person from the moment of conception. This means that in vitro fertilization, intrauterine devices, and post hoc contraceptives can all be classified as murder tools.
The starting point of the “choice school” is to insist that women have autonomy over their womb, health and future life. Women’s right to decide their own life is one of the most basic concerns of mankind and should be protected by the constitution. In their view, women are not treated as equal members of society if they cannot fully control their bodies. Depriving women of the right to abortion will also exacerbate economic, social and political inequality, leading to an increase in maternal mortality. However, the “selectionists” also avoided talking about whether and when the fetus will become life.
This is also reflected in the ruling of the Federal Supreme Court. The “majority opinion” has repeatedly emphasized the importance of protecting the life of the fetus, but refused to state its position on whether women have the right to decide their own life and health, and has kept silent on the impact of childbirth on women and the well-being of young lives born under unfortunate circumstances. The three liberal justices pointed out in the joint objection that overturning the roe judgment seriously damaged the equal status of women. They wrote: the majority justices believed that “from the moment of conception, a woman has no say. A state can force her to deliver the fetus, even at the greatest personal and family cost.” ?
As for the “impartiality and neutrality” claimed by the conservative justices in the “majority opinion”, these liberal justices argued that the right to abortion is a basic right of women, and when it comes to rights, the court is not acting in a neutral manner by handing over rights to the States, and protecting the rights of everyone is a neutral action.
In the opinion poll, most Americans believe that in all or most cases, women, not states or federations, should have the legal right to decide whether to terminate pregnancy. In the view of many supporters, women’s right to abortion is neither a single political issue nor a problem of women’s “freedom of choice”, but a part of the broader social justice agenda.
Many men support women’s right to abortion, and many women oppose women’s right to abortion. This is not a gender war between women and men.
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Break the principle of “following precedents”
At the hearing of the U.S. Senate on the nomination of the chief justice, we often hear such a Latin phrase: stand decision, which means “stick to what has been decided”. In the field of law, this phrase refers to the fact that the judge will obey the principle of “following precedents” and respect but not overturn the former judge’s reasoning and conclusions when discussing the issues dealt with by the former judge, regardless of personal preference.
On June 26, 2022, the United States Supreme Court building, Washington, D.C. Figure surging image
The principle of “following precedents” is one of the “key pillars” of the rule of law in the United States, which can not only enhance the stability of the legal system, but also avoid social divisions and huge fluctuations.
Even the conservative justice who overturned the Roy case had to enumerate the importance and benefits of “following precedents” in the “majority opinion”: protecting the interests of people who rely on past decisions to take action; Reduce the motivation to challenge the settled precedent and save endless litigation costs for the parties and the court; Adjudicate similar cases in a similar manner, thereby promoting “fair” decision-making; Contribute to the actual and perceived integrity of the judicial process; Curb judicial arrogance and remind judges to respect the judgments of those who worked hard to solve important problems in the past. ??
The “majority opinion” also quoted the past writings of federal justice Neil gossach, who was nominated and appointed by trump, saying: “precedent is a way of accumulating and inheriting the experience of the past few generations. It is a source of mature wisdom, which is richer than the experience of any judge or panel of judges.” ??
The case actually heard by the Federal Supreme Court is a lawsuit filed by the only family planning clinic in Mississippi against the state law prohibiting abortion after more than 15 weeks of pregnancy enacted in 2018. Six conservative justices, including Chief Justice John G. Roberts Jr., voted for the state law of Mississippi, with a verdict of 6:3; The vote to overturn Roy’s judgment was 5:4, and Roberts did not vote for overturning Roy’s judgment. ??
Roberts’ main reason is to uphold the “follow precedent” principle. He called on other conservative justices to “strictly observe judicial restraint” and “there is no need to go so far”. He said that regardless of his position, overturning the roe judgment means breaking the principle of “following precedents”, which will cause “serious shocks” to the U.S. legal system. ?
The liberal justice also pointed out sharply in the joint objection that the cancellation of a 50 year old constitutional right to protect women’s freedom and equal status “violates the core rule of law principles aimed at promoting legal stability” and undermines the legitimacy of the Federal Supreme Court.
Nevertheless, the conservative justice still relied on the number advantage to kick Roberts’ appeal and the liberal justice’s warning to the iron plate.
According to US media, Roberts spent seven months trying to persuade other conservative justices, but was rejected. As the chief justice, he was marginalized and unable to become the balance fulcrum of the Federal Supreme Court. The words he repeatedly stressed in the past, such as “the court is not political” and “the Lord Chancellor is not partisan” (“we have no judge Obama or judge trump”), have also become pale because of the clear partisan camp of the Lord Chancellor.
In the past few years, the struggle between the two parties in the United States over the nomination and appointment of federal justices has made it difficult for the politicization of the Federal Supreme Court, and its popularity has reached a record low. A recent poll also showed that overturning the roe case was out of line with American public opinion. A CNN poll in May showed that 66% of the respondents believed that the roe case should not be overturned. Gallup poll in June found that the proportion of Americans who “support abortion” has hovered between 45% and 50% in the past 10 years, and has now risen to 55%, the highest since 1995; At present, the proportion of anti abortion Americans is only 39%, the lowest since 1996.
In the eyes of people who support women’s right to abortion, the Federal Supreme Court is indifferent to the consequences of its ruling, ignores the damage that may be caused by overturning precedents, and ignores the impact on people in dealing with intimate relationships, career choices and livelihood arrangements, and becomes an institution trying to impose right-wing views on the whole country. The “majority opinion” of the Federal Supreme Court failed to convince them that its authority had been damaged.
Many Americans worry that overturning the Roy case will also endanger other precedents from contraception to same-sex marriage, and the relevant legal conflicts may be protracted. Although the “majority opinion” emphasizes that this ruling only concerns the right to abortion and does not involve precedents unrelated to abortion. However, justice Clarence Thomas wrote in a separate opinion that the logic of this ruling requires the Supreme Court to reconsider the decisions on contraception, gay sex and same-sex marriage, “we have the responsibility to ‘correct’ the errors established in these precedents”.
The three liberal justices also pointed out in their dissent that overturning the roe case means that all constitutional rights Americans now have, but not dating back to the mid-19th century, are unsafe. “Either the opinion of the majority (the Lord Chancellor) is false, or the additional constitutional rights are threatened. Either or.” ?
Critics believe that the rationality of the decision to abolish a long established constitutional right or the action taken will substantially undermine the predictability and continuity of legal rights and obligations will soon disappear if public reaction is not taken into account. The current chief justice of the Federal Supreme Court carried out radical reform of the law simply because he did not agree with the views of the former chief justice. This practice is bound to damage the trust and respect of the people for the legal system. If the people lose respect for the legal system, their faith in the rule of law will be shaken.
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Aggravate social division
In his “majority opinion”, Samuel A. Alito Jr., a conservative justice of the Federal Supreme Court, bitterly criticized the Roy case judgment as “grossly wrong from the beginning, causing devastating consequences. Instead of solving the abortion problem across the United States, it provoked debate and deepened differences”.
He claimed that 49 years ago, this judgment became the root cause of political polarization in the United States and the fall of the federal court into partisan disputes, “triggering a national dispute that has afflicted American political culture for half a century”. Alito hopes that by overturning the roe judgment, American political life can be more rational, and at least states can decide whether to prohibit or restrict abortion without interfering with each other.
Indeed, the Roy case is one of the most controversial legal decisions in the United States. The anti abortion movement spawned by the Roy case will merge with the American conservative movement in the future, making the Republican Party redesign its election strategy. For decades, it has invested huge amounts of money in state legislative elections to support politicians who have appointed anti abortion federal judges as their campaign commitments, thus bringing great benefits to the U.S. Congress, States The federal court structure and even today’s polarization of bipartisan politics have a strong impact. In retrospect today, an American media person couldn’t help saying, “anyone who underestimates the anti abortion movement looks like a fool today.” ?
However, Alito’s accusation of the division of the United States by Roy’s judgment is also an accurate description of the consequences of overturning Roy’s judgment, and his expectations for a more rational political life in the United States appear wishful thinking.
In a word, overturning the roe judgment is not only impossible to stop the litigation between the two parties and society in the United States on the issue of abortion, but also like adding fuel to the fire, opening up new battlefields, and making the flames of political polarization, social division and cultural war in the United States burn more vigorously. Before the Federal Supreme Court issued its judgment, metauniverse specifically informed employees not to openly discuss abortion in the workplace, because “it will increase the risk of creating a hostile working environment”. ?
Taking the right of abortion away from the Federation and delivering it to the States, actually compressing the state rights and expanding the state rights, will also lead to the growing differences and divisions between the Red States dominated by the Republican Party and the blue states controlled by the Democratic Party. ??
Less than an hour after the Federal Supreme Court overturned the roe case, Missouri, the red state, took the lead in announcing that its anti abortion state law would take effect immediately. Unless the life of a pregnant woman was in danger, abortion could not be performed even if she was pregnant due to rape or incest, and the violator would face a felony penalty of 5 to 15 years’ imprisonment.
According to US media reports, on June 24, the anti abortion laws of nine red states were triggered into effect. It is expected that about half of the 50 states in the United States will implement state laws prohibiting or restricting abortion within 30 days. They are mainly located in the southern and Midwest of the United States.
In sharp contrast, from California to New York and Maryland, many blue states on the East and west coasts of the United States have quickly proposed bills to strengthen the protection of women’s right to abortion. The governors of California, Oregon and Washington also jointly issued a “commitment to reproductive freedom”, saying that they would like to serve as a refuge and welcome women who seek abortion in their states. ??
The legal issue of abortion is bound to have a series of impacts on talent flow, education and industrial competition in red and blue states. ?
Ronald Bronstein, a columnist for Atlantic Monthly, quoted Michael podhorzer, an election analyst, as saying that today’s United States is “more like a Federal Republic composed of ‘two countries’ of blue states and red states”, “this is not a metaphor; this is a geographical and historical reality”. Brownstein believes that the deepening differences and oppositions between the red states and the blue states have formed a significant feature of the United States in the 21st century, and the pressure on the internal cohesion of the United States is increasing, “the United States may be moving away forever”. ??
In addition to social division, overturning the roe judgment will also bring huge political shock waves. Several US media disclosed that trump, who was preparing for the 2024 general election, privately said that the ruling of the Federal Supreme Court would be “detrimental to the Republicans”, which may cause the anger of suburban women who have a significant impact on the election results.
It is generally believed that from the mid-term election to the presidential election, the Democratic Party will use the issue of abortion to vigorously mobilize votes, and many state Democratic candidates have made statements or held activities. Pelosi, the speaker of the house of Representatives, wrote a letter to House Democrats, touting the Democratic Party as a “free and safe party” and labeling the Republican Party as a “punishment and control party”.
Many analysts expect that the overturning of the Roy case will stimulate Democratic voters who had no intention of participating in the mid-term elections. Although compared with inflation and other issues, the right to abortion may not necessarily become the core issue of the mid-term election, but when the candidates of both parties are close to each other, the degree of mobilization of votes is bound to have an important impact on the election results. In the long run, the Democratic Party will also adjust its strategy, vigorously invest in local and state parliamentary elections, and compete for control of the state legislature.
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It won’t be a stop
Human joys and sorrows are not interlinked, which has been clearly and profoundly reflected in the debate over women’s right to abortion in the United States for decades.
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But the complexity of real life is still beyond the brain of the most imaginative novelist.
According to the US media, Norma McCorvey, a Texas pregnant woman who won the abortion lawsuit 49 years ago, has never had an abortion in real life, and the long legal process has also prevented her from having a legal abortion.
McCorvey had given birth to his daughter and sent her to others for adoption before the Federal Supreme Court made a judgment. This is her third and last child. Her first two children were also adopted by others after birth.
Paradoxically, although she filed a lawsuit for the legal right to abortion and later worked for groups supporting abortion, in 1995, 22 years after the Roy case was adjudicated, she joined the Christian rebirth sect and became a member of the anti abortion group. Atlantic Monthly reported that her attitude towards abortion was contradictory all her life, and she was very unhappy until her death at the age of 69 in 2017.
Shirley, the daughter she was pregnant with when she filed an abortion right lawsuit, was identified by the media and interviewed on her doorstep 10 days before her 19th birthday. Shirley recalled, “all I wanted to do was go out with friends, date cute boys, buy shoes and so on.” However, the media has been asking her whether she is in favor of or against abortion and which side she is on. She “didn’t dare to answer. She wanted to know why she had to choose a position and why everyone had to choose.” ?
Shirley finally chose to oppose it because she thought abortion was something she couldn’t imagine. Shirley, who learned of her life experience, also agreed to meet her biological mother, but was afraid to hug her and “hide her as background noise” might be better.
In fact, it’s hard to understand the feelings of pregnancy, childbirth or abortion and its impact on women’s body and mind, not to mention men without uterus and women who have not given birth. Teenage pregnancy, pregnant women who take drugs and abuse drugs, fetuses with congenital serious diseases, older mothers who have given birth several times, careless pregnancy, the economic and educational burden of raising children, poverty, unemployment or unstable living environment… Various specific situations make every abortion case possible to involve difficult decisions.
The dispute between the right to abortion and the legitimacy of abortion makes people recall the famous saying of Thomas Aquinas, a theologian in the Middle Ages: “mercy without justice is the mother of all disintegration, while justice without mercy is cruel.” ?
Banning legal abortion will not make abortion disappear, but it will create illegal abortion. Don’t turn pregnancy into a punishment, which is the appeal of many Americans who support women’s right to abortion. Kim Ogg, the district attorney of Harris County in Houston, the fourth largest city in the United States, issued a statement saying, “defining reproductive health as a crime will cause great harm to American women. Prosecutors and the police have no role in the doctor-patient relationship.” ?
Whether in developed or developing countries, the right to decide when and whether to give birth is closely related to the political, social and economic rights of individual women. Whether women can maintain the right to abortion as a basic right is not only related to their reproductive health and the ability to participate in society fully and equally, but also has a far-reaching impact on the harmony and stability of the whole society.
In the late Obama administration, some people asked whether the cause of liberalism / progressivism had ended? What is the next goal? At that time, the United States signed the Paris climate change agreement, legalized gay marriage, and the Democratic Party seemed to have completed the “progress agenda”.
But in between, one party battle after another began. The abolition of the right to abortion has set another goal for Democrats, liberals and the left.
As Biden said in his speech on June 24, the ruling of the Federal Supreme Court will not be a pause.
The judgment overturning the precedent may also be overturned one day. Of course, if you lie flat and wait, it is difficult to wait.