Abortion debate comes alive

JUDGES bide their time. Be it in the US, Pakistan or the tiny Maldives. But when the Justices act, they strike with such devastating effect that power equations change and new chapters in the history of nations open up.

The fear is that in the coming weeks or months before the judgment is delivered, or the leaked draft is altered due to pressure, violence may erupt on the streets.

The US is now on the threshold of a crisis that is potentially more serious than the rioting on the premises of its Congress last year, which was organized to overturn results of America’s presidential elections. Its Supreme Court judges are the central players in this plot. If the court finally ends protection for abortion rights, which Americans have enjoyed for almost half a century, it will vertically divide their society which is already at its polarised worst since the 1960s. Protection for abortion rights was granted in a historic Supreme Court judgment in Roe vs. Wade. Roe was an anonymous name for the appellant, Norma McCorvey, while Wade stood for Henry Wade, the District Attorney who was opposed to Norma aborting her third pregnancy. Ever since the judgement became the law in 1973, conservative judges in the Supreme Court have been biding their time to reverse it and make abortions illegal in most cases. Their time came during Donald Trump’s rule, when a combination of death and retirement on the Benches enabled the last Republican President to create a clear right-wing majority by nominating one-third of the highest court’s strength.

Trump did not nominate the new Justices to nullify Roe vs. Wade. Earlier in his life, Trump was for abortion, he was ambivalent in the early stages of his Republican presidential primaries and came out unequivocally against abortion only when it became clear that such a stand would propel him to his party’s nomination to the White House.

It was Trump’s hope that the right-wing nominees he elevated to the Supreme Court would stick by him if it became necessary to commit the illegality of declaring a Democratic election victory against him as invalid. But his nominees threw out all the cases which Republicans brought against the 2020 election procedures and results. Other conservative judges also refused to take decisions which would have overturned the presidential poll results.

The game the conservative Justices were practising to play was deeper and their stakes were much higher than the individual fortunes of a mere presidential aspirant. Right to the life of an unborn child is an article of unshakeable faith with most conservatives and Supreme Court judges are no exception.

Last Monday, Politico, a digital news outlet, founded as a startup 15 years ago, published the draft of a judgment which the court is likely to deliver soon: that judicial verdict, if delivered unchanged, would practically outlaw abortion. The next day, Supreme Court Chief Justice, John Roberts, confirmed that the leaked draft was an authentic document.

As an aside to the main story, it is a testimony to the strength of US institutions, including the Fourth Estate, that Roberts confirmed the Politico story immediately. In India, whenever scoops are published about any authority of the state, the standard reaction of official spokespersons is to discredit such stories. No spokesperson has ever apologised, let alone resigned, when the leaked story turned to be true, sometimes as soon as 24 or 48 hours later.

Demonstrations by those who want women to have the right to take decisions about their body and their life broke out immediately in liberal cities like New York, San Francisco, Seattle and Chicago as well as in islands of liberal thinking like Houston and Salt Lake City in otherwise conservative states like Texas and Utah.

Republicans and conservative supporters among the public who want a reversal of Roe vs. Wade have been circumspect and have not countered liberal vociferousness in any big way. They know that a sweeping ban on abortion countrywide is unpopular. So they are turning the leak into an issue instead of the leaked document.

The fear is that in the coming weeks or months before the judgment is delivered, or the leaked draft is altered due to popular pressure, violence may erupt on streets.

Ironically, for President Joe Biden, who believes in a woman’s right to choose, the leak may be a godsend, to use a mixed metaphor which would infuriate anti-abortionists. He was in danger of losing both Houses of Congress in the coming mid-term elections in November. But the cause of perpetuating Roe vs. Wade will energise the Democratic Party base. For liberals, the right to abortion will be a cause célèbre to bring more Democrats into Capitol Hill to prevent further erosion of fundamental freedoms, some of which the Americans have taken for granted.

There is a strategic reason why the Republicans are making the leak into an issue. But they cannot speak openly about this as it would be a travesty of fundamental democratic principles. For far too long, they have used courts and their partisan right-wing judges to push forward their conservative agenda, which will fail in any election or free public choice.

In 2000, Republican George W Bush became President through the intervention of the US Supreme Court. He did not win the popular vote and his majority in the Electoral College, which chooses the President, was engineered through a judgment in the highest court.

Supreme Court judges are appointed by the President, subject to Senate confirmation of their nomination, and once appointed, they remain judges for life. They are not accountable to anyone. That is why in 233 years, the US has had only 17 Chief Justices of the Supreme Court. Biden had a chance to change this and he campaigned on that promise. But he sat on it after going to the White House.