The US Supreme Court Puts the Clock Back

 

The US Supreme Court Puts the Clock Back

In a landmark judgment of 1973 in the Roe Vs Wade case, the US Supreme Court ruled that the Fourteenth Constitutional Amendment (1868) had provided the right to abortion and struck down many federal and state abortion laws.  However, in a ruling on 24 June 2022, the Court has overturned the 1973 judgment. The court ruling powered by its conservative majority 6-3 upheld a Republican -backed regressive Mississippi law that bans abortion on the ground that the US Constitution makes no specific mention of abortion rights, thus denying women the right over their own bodies.

 

The court ruling is a most regressive step in the context of gender equality and empowerment of women. Half a century ago when the American women won the right to abortion, only 20% of those aged between 25-34 were without a child as compared to 52% today;11% of those between 25-44 had a college degree as against 41% today, and only 17% of jobs in management were held by women between 16-44 age group, compared to 45% today. The reproductive freedom is linked to economic freedom. 

And with more and more women taking up jobs and occupying important positions, maternity must be a voluntary choice. Why should  women be forcibly chained to maternity? Further, how could the court ignore rape and incest? Isn't it immoral to expect women to bear the child of a rapist? If abortion as a right is dissolved, women can be forced to give such unwanted and undesirable births and face social stigma. .

The 1787 Constitution of the US did not mention abortion, because the women were not autonomous then and didn’t have even the right to vote which was granted to them only in 1920. Today, women are independent and enjoy civil, economic and political rights.

 

Former the US first lady Michelle Obama has reacted sharply to the judgment “This is what our mothers and grandmothers and great-grandmothers lived through, and now here we are again. This horrifying decision will have devasting consequences, and it must be a wake-up call, specially to the young people who will bear its burden.” Many world leaders denounced the court ruling scrapping the constitutional right to abortion. French President Emmanuel Macron said: “Abortion is a fundamental right for all women. We must protect it. I would like to express my solidarity with all those women whose freedoms have today been compromised by the US Supreme Court.” Speaker of the House of Representatives, Nancy Pelosi called the ruling a “slap in the face to women.”

 

As per the international human rights law, countries are under obligation to repeal discriminatory criminal laws. A statement issued by the UN human rights experts expressed that “what has happened in the United States today is a profound setback for the rule of law and gender equality”. By allowing states to effectively force women to carry pregnancies, the court has placed the US amongst a small set of countries that in recent years have backtracked on abortion rights- El Salvador, Honduras, Iran, Nicaragua and Poland. The Court ruling has criminalised the abortion, providing a roadmap to encroach on other freedoms involving marriage, sexuality and birth control. For the first time in history, the US Supreme Court has eliminated an established constitutional right involving the most fundamental of human concern- the right to freedom and dignity. As The Washington Post reported, “it is hard to exaggerate how wrongheaded, radical and dangerous the ruling is...thrust the country and the court itself into a perilous new era, one in which the court is no longer a defender of key personal rights.”

 

The court ruling will turn women into second class citizens, with 36 million women-roughly half the women of reproductive age in the US- living in some 30 states affected by the ruling. These are largely states in the Midwest and Deep South. On the other hand, states on the coasts, and run by Democrats are expanding abortion related protection to ensure that the right of women to travel to states where abortion is banned to those states where it is available. It is mostly the blacks, the economically poor and the marginalised who are adversely affected by the ruling. The social and political divisions of America are now reflected in law, a throwback to the era when south and north battled over the legal architecture on slavery.

 

The flawed democracy explains the US descending to illiberalism:

 

First, the court ruling is an outcome of undemocratic nature of the political and electoral system that doesn’t give citizens equal voice and disproportionately favours the conservatives. The ruling is a victory for the Republican Party, the social conservatives and the Christian Right. The US democracy breeds conservatism. The Republican voters are obsessed with voting for anti-abortion candidates both for the Presidency and the US Congress. The Presidency is not based on winning a majority of the popular vote but a majority of the seats in the electoral college. The Senate has two seats from each state, irrespective of its size and population, which is a clear violation of the democratic principle of all citizens being politically equal.

 

Second, the ruling is also a result of a judicial nomination system which raises serious questions about the independence of judiciary itself. The nomination process rests on executive nominations and legislative confirmations that allows parties to select candidates not for their understanding of the law and authority over jurisprudence but where they stand on the culture issues at the heart of their value system. It throws up judges whose ideological beliefs rather than constitutional judgment is the fundamental criteria for nomination. Trump nominated three conservative judges to the Federal Supreme Court between 2016 and 2020. That is how today the US Supreme Court of 9 judges is packed by 6 conservative and 3 liberal judges, nominated by the Republicans and the Democrats respectively. The judges are appointed for life which makes them insulated against any kind of pressure and inducement. It allows partisan judges, appointed through a partisan process, to do what they wish without any accountability. This explains why the US Supreme Court could overturn the national legal right to abortion.

 

A former Chief Justice of US Supreme Court, Charles Evans Hughes, remarked: " We are under a constitution, but the Constitution is what the judges say it is."  The court ruling undermines America’s place in the world, its moral high ground of being the beacon of freedom, its sermons on democracy and human rights sounding increasingly hollow. The ruling will make other countries to conclude that the Biden administration and its value system is fragile. Trump has gone, but Trumpism is very much here to stay. 

The Supreme Court has become more conservative, unmindful of the issues affecting the American society. Recently, it struck down gun control laws in New York, expanding gun rights at a time the US is in the throes of a gun violence epidemic. No doubt, a Gallup poll shows that only 25% of American have faith in the Supreme Court, the number dwindling to 13% among Democrats. And with the Supreme Court putting the clock back, illiberalism is getting institutionalised in law. A divided and broken America is at war with itself.