By Andrej Žitnik (Nova24TV.si)
The Slovenian media published bombastic headlines about the verdict of the US Supreme Court, which annuls the precedent case of Roe vs Wade, such as: “Supreme Court abolished the right to abortion, the next step contraception?” among other things, a similar title was published by the web portals 24ur and MMC. These are bombastic headlines, probably translated into Slovene by a Google translator from the American liberal media. The American media see the verdict as a huge political potential for the upcoming elections to the Senate and the House of Representatives. In fact, the Supreme Court did not prohibit abortion, as it has no such powers at all.
Why is it all about? In the 1973 Roe vs Wade lawsuit, a 22-year-old pregnant woman known under the pseudonym Jane Roe (later turned out to be 22-year-old Norma McCorvey) sued Dallas County or Attorney General Henry Wade, as she wanted to have an abortion at five months pregnant, and Texas law forbade such an intervention. In some states until then, legislation was in place that provided a possibility of abortion only in cases where such an intervention saved the life of a pregnant woman.
The Supreme Court ruled in the Roe vs Wade case that states do not have the power alone to prohibit abortions by federal law. At least until the fetus cannot survive outside the womb. That is, the regulation of abortion was transferred from the states to the federal level, by the precedent of the Supreme Court. Which is not to say that anywhere in the US Constitution it is written that abortion is a woman’s constitutional right.
The definition of when a fetus can survive outside the womb has changed with the development of science – then the incubation period was 28 weeks, and with modern incubators embryos routinely survive even if they are born at only 23 weeks, some even at 20 weeks.
The precedent of the Supreme Court of Roe vs Wade, however, also had certain limitations: the unlimited possibility of terminating a pregnancy was valid only in the first trimester. In the second trimester, abortion was allowed solely to protect the health and life of the pregnant woman. In the third trimester, however, the states were also able to ban abortion themselves, just as before the verdict.
The court did not ban abortion
What did the Supreme Court rule with the latest verdict that upset the public so much? It certainly did not prohibit abortion. These are mainly legal, not ethical, or even political concerns of the court, as some have accused them. The Supreme Court rightly found that the US Constitution does not prescribe the right to abortion. Therefore, the Roe vs Wade decision must be annulled and the right to regulate abortion returned to the level of the federal states, where elected representatives of the people pass such legislation as most of the country’s population wants. The Supreme Court therefore did not abolish the right to abortion, it only correctly found that it was not competent to do so at all, as it was not a right regulated by the Constitution.
Serious American lawyers – both those on the Liberal side and those on the Conservative side – agree that the Roe vs Wade case crossed the boundaries of the Supreme Court’s jurisdiction and, with the political will of the then Liberal Court, set a legislative precedent that was unconstitutional. The Slovenian Constitutional Court can also adjudicate only cases that are directly related to inalienable rights under the Slovenian Constitution, although sometimes by creative use of an article it crosses these boundaries and decides on matters where it has no jurisdiction (a good example of this is a judgment stating that the state is constitutionally obliged to finance the public service broadcaster RTV Slovenia).
The power to decide on abortion lies with the states
The Supreme Court ruling thus returns the right to determine legislation in this area to those who have jurisdiction over it – that is, to state legislators. In most liberal states, nothing will change. The right to abortion is federally legal almost everywhere in the United States, regardless of the Roe vs Wade case. In some countries – thirteen – however, elected legislators will pass the laws that most people in the country want. Which can also mean banning abortion.
One of these states is also Texas. But beware – Texas is a country where lawmakers with interesting legal manoeuvres have already achieved a circumvention of the federally valid judgment of Roe vs Wade, so that those who perform abortions are civilly liable for unintentional damage, which closed the door of a few clinics that offered this service. It was only a matter of time before other states would resort to similar manoeuvres to achieve the same bypass.
It is important to emphasise the following – the United States is a federation – a union of states, with free crossing of borders, workers, goods, and services. The federal states are even more intimately connected than the European Union. A pregnant woman who is not allowed to undergo an abortion in Alabama, Georgia, or Texas will be able to go across the border to another state that allows it. Most private health insurance providers offer treatment in any state, as well as US private companies have announced they will support their employees who want to have an abortion in another state. Some companies have even announced that they will pay employees for the trip to the nearest clinic outside the country. In the United States, as many as 180 million people are insured through their employer’s private insurance packages.
Access to abortion will remain unchanged
American publications with bombastic headlines about the ban on abortion are already running an election campaign for the Democratic Party, and the Slovenian media are only copying their articles. The truth, however, is quite different. In 1973, the Supreme Court – which was politically very similar to the current Slovenian Constitutional Court – passed an unconstitutional law banning federal states from enforcing legislation within their jurisdiction. Currently, the Supreme Court has corrected this legal error. Access to abortion in the US, however, will remain virtually unchanged.
Interestingly, in the end, Norma McCorvey (Jane Roe) later regretted the decision to have an abortion and even became an anti-abortion activist. She claimed she went to the lawsuit simply because liberal activists paid her court costs.