A constitutional and political thunderbolt has struck the US after the highest court in the land overturned one of the most significant decisions in its history, shredding a 49-year-old right to an abortion, paving the way for months of protests and uncertainty for women across the US.
But the practical ramifications of the decision do not justify the imminent rage and riots about to unfold across the US. The vast bulk of American women will still be able to obtain an abortion, which had been steadily declining in number from a peak of 1.5 million a year in 1990 to around 930,000 in 2020, according to the Guttmacher Institute.
Mississippi, one of the most socially conservative US states, was seeking to ban abortions after 15 weeks, which still provides three months for women to terminate their pregnancies, and only one week fewer than in Tasmania, where it’s 16 weeks.
The court on Friday (Saturday AEST) simply said: this isn’t up to us, it’s up to the people to decide, just as they do for practically everything else.
And the American people are in favour of legal abortion, more than 60 per cent of US adults overall, according to the latest poll from Pew Research conducted in March.
To be sure, for some women in smaller US states, the decision may lead to unwanted pregnancies, as backward old laws spring back to life, for a time at least, in predominantly southern states. But these cases, in the scheme of things, will be relatively rare.
The combined population of Alabama, Arkansas, Louisiana, Kentucky, Mississippi and West Virginia, states where fewer than 40 per cent of voters say abortion should be “mostly legal”, according to Pew, is less than 22 million, not even 7 per cent of the US population.
Australians’ first instinct will be shock — yet another example of American extremist politics — but the verdict brings the US into line with other nations, including Australia, where the rules around abortion are decided by states.
Nancy Pelosi, Democrat House speaker, was quick to accuse the court of hypocrisy over its latest ruling, which came in the same week the court quashed a New York State law that restricted gun carriage outside the home.
But the US constitution plainly doesn’t mention abortion in the way it mentions say, free speech, or the right to bear arms. No country in the world enshrines a right to abortion in its founding document.
Throughout Europe the legality and public funding for abortions is an outcome of the democratic and legislative process, as it will be in the US once again.
For decades justices, even the late Ruth Bader Ginsburg on occasion, have conceded the original 1973 ruling was at best far from ideal, a legal house of cards that the court, if it were being honest with itself, would strike down.
The Supreme Court has overturned other bad calls, most famously and shamefully the 1896 Plessy v Ferguson decision that condoned racist “separate but equal” schooling, reversed in 1954.
In any case, the political Left in America has long stressed the importance of respect for diversity and different cultural values; it can’t very well apply a different standard to a small, and much poorer, segment of its own society.
The court’s decision, as it will be widely and largely wrongly construed, will be unpopular. But the law isn’t a popularity contest; judges aren’t meant to be swayed by emotion.
Democrat political strategists, outwardly devastated by the decision, might privately be thrilled: overturning Roe gives a party struggling in the polls an opportunity to bring out the base.
It would be a waste of time; the court’s decision takes primacy over any, even federal, legislation.
The federal government could instead pursue practical measures until southern attitudes catch up to the 21st century, such as funding the transport costs of women to travel to states that provide for abortions, as large US corporations have already promised for their employees.
But this, of course, would only illustrate how overblown is the rage about to unfold.
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