US Supreme Court decision of June 24, 2022 “Dobbs vs Jackson

Women’s Health Organization

Introduction:

The appointment of former US President Donald TRUMP as the leader of the United
States has disrupted institutional and legal data. Many reforms have indeed been
undertaken. This is precisely the case with regard to the appointment of the 3
conservative judges to the Supreme Court of the United States which allowed the
conservatives to obtain the majority in this court. From now on, the court is composed
of 9 judges including 6 conservative judges appointed by the Republican presidents
during their mandate. Despite an intense mobilization of the American population, the
decision of June 24, 2022 called into question an important decision of January 22,
1973 which established the universal protection of the right to abortion in all American
states. This right is no longer a right common to all States and each of them now has the
possibility of prohibiting abortion or not. This decision has consequences for the
sustainability of the right to abortion in the United States. In order to better understand
the impact of this decision on positive law (C), it is therefore necessary to go back to
the origins of this case (A) and prior to the decision of the judges (B).
A- The origins of the case:

In the fall of 2021, the Supreme Court decided to hear the arguments of the parties
in two cases relating to the right to abortion, thus transforming initially procedural
questions into real substantive questions, both controversial and emblematic. In
parallel with a hearing devoted to an extremely restrictive Texas law, called the
"Texas Heartbeat Bill", the Supreme Court decided, on December 1, 2021, to
examine a text which led it to its decision of June 24, 2022: the "HB 1510”, also
called “Gestational Age Act”, adopted on March 19, 2018, in Mississippi this
time. This text, initiated in 2014, prohibited abortions beyond 15 weeks of
pregnancy, except in cases of "medical emergency" or "serious fetal abnormality".
The course of this text, here and there still strongly decried, had been paralyzed by a
legal action brought by the only clinic in Mississippi still practicing voluntary
terminations of pregnancy (IVG). The case was then listed nearly twenty times on
the program of the weekly conference of Supreme Court judges, before the latter
decided to take it up, initially on May 17, 2021. However, since 1973 and the
famous decision of January 22, 1973 Roe v. Wade, states were theoretically no
longer able to ban abortion before the fetus was viable outside the womb. The color
was therefore undoubtedly already announced: by refusing, in a perfectly
discretionary manner, to suspend the entry into force of a federated law manifestly
contrary to this interpretation of the federal Constitution, laid down more than fifty
years ago, the Court supreme had already shown great laxity with regard to federal
laws hostile to abortion. She will then announce that she agrees to look into the
question submitted to her, suggesting the potential challenge to the Roe v. Wade.
Legal problem: The Washington judges thus found themselves confronted with a
major question: what fate should be reserved for the federal laws which impose a ban
on abortion that does not respect the federal framework laid down by the Roe v. Wade?
This question leads to another, much clearer one: should the general framework of the
right to abortion, enshrined by the Supreme Court in 1973, be maintained?
B- The decision of the judges:

The answer is stark: Roe v. Wade must be annulled, since "the right to abortion is not
protected by any provision of the Constitution". Much like Planned Parenthood of
Southeastern Pa. v. Casey's 1992 decision that 1973 "was based on a faulty historical
account" and only inflamed the debate, while deepening the divisions. Therefore,

“the Constitution does not prohibit the citizens of each State from regulating or
prohibiting abortion. Roe and Casey arrogated this authority to themselves. The Court
overturns these decisions and returns this authority to the people and their elected
representatives”.
C- The meaning and scope of this decision:

The meaning and scope of the decision of June 24, 2022 cannot be distorted: the
Supreme Court does not prohibit abortion; it announces loud and clear that the right to
abortion is no longer a fundamental right guaranteed at the federal level. By a
pendulum phenomenon, which leads to a real step back, the Supreme Court therefore
leaves it up to the States to decide the fate which will henceforth be reserved for this
fundamental right laboriously acquired by American women in 1973. This new
configuration leaves today oday the field is open to a great diversity in terms of
fundamental rights, which is not without consequence on the existing balances. This
decision will mark a milestone. It is emblematic of the particular position that
fundamental rights occupy within the American legal system: endowed, first of all,
with a protective function, they materialize in different forms, in this case under a
particular facet which consists to guarantee women the right to dispose of their bodies,
and more specifically the right to have an abortion; they have, moreover, a structural
function, in the sense that they participate in the relationships - now deeply reorganized
- that the federal and federated legal and political orders can maintain.
Conclusion :

With this decision, the Supreme Court is therefore proceeding with an absolutely
frontal challenge to the right to abortion at the federal level. This new position,
reflecting an extremely conservative turn of the Court, implies and will imply a certain
number of consequences, both for rights and freedoms and for federalism,

the federated States once again having in their hands the fate of this fundamental right.
undeniably weakened.