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USA: Supreme Court and Abortion – The End of an Era?

D.A letter of condolence has been written for the fundamental right to abortion in the United States – and the liberal abortion jurisdiction of the US Supreme Court has come to an end, which has been in effect since the Row v. Wade case.

A draft Supreme Court ruling in the Tops vs. Mississippi case makes it clear that a majority of the five Supreme Court justices want to overturn that ruling once and for all. What does this mean for women who want to have an abortion in the United States, but what about the American community?

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Abortion law in the United States

Politically, this draft ruling will serve to deepen the already existing deep political chasms in American politics and fuel the democratic critique of the Supreme Court’s politicization.

In general, the draft is seen as a sign of an aggressive conservative agenda by five of the six constitutional judges already appointed by the Republican Party. The sixth of these judges, Chief Justice John Roberts, is increasingly becoming a moderate exception to his peers.

This is compounded by the fundamental criticism of the Supreme Court Democrats.

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May 3, 2022, USA, Washington: People gathered before the Supreme Court on Tuesday morning, May 3, 2022.  The US Supreme Court is set to overturn its 1973 landmark ruling on abortion.  It comes from a draft in circulation in court, which

Debates over the fundamental reform of the judiciary – institutionalized by the Supreme Court Reform Commission by President Fidel – have recently waned and now need to update a judgment in the sense of the leaked draft.

In terms of constitutional law, it is very difficult to classify a draft judgment. It remains to be seen how the Supreme Court’s final verdict, which is not expected until June, will relate to this. The court’s previous line is that women in the United States can have an abortion until the fetus is activated.

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The exact time changed in the course of the case law, but most recently it was 23 to 24 weeks of pregnancy. If the decision made in the draft is retained, it is possible, then that the permission for regular abortions will be left to the individual states.

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In other words, there is no constitutional right to abortion or a constitutional prohibition on abortion. In the United States, individual states can restrict their consent to abortion – beyond the rational requirements of the Constitution – which can lead to very different conclusions.

The Mississippi abortion law in question in the current draft judgment is relatively balanced: it should allow abortion until the 15th week of pregnancy and in some exceptional cases, such as a medical emergency. This is roughly similar to the German legal situation.

Basically, there are many differences between individual states; Sometimes more relaxed, but sometimes very strict rules prohibit abortion when many women are not even aware of their pregnancy.

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So some women in the United States can still have abortions relatively easily, while others cannot. Those with adequate financial resources can go to other states to have an abortion. So the end of the constitutional right to abortion will affect poor, younger and less educated women.

However, the draft judgment only touches on this issue by mentioning the various safety options for pregnant women. These are the so-called “safe haven” laws, according to which it is possible in all states to release children born anonymously for adoption.

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At the same time – and unlike the Federal Constitutional Court in the Second Abortion Judgment of 1993 – the existence of such laws or other provisions relating to maternity protection is not constitutionally linked to the question of whether abortion is permissible. In other words, the states have no constitutional obligation in this matter.

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The draft ruling is also silent on the question of whether abortion is possible under the Constitution in the event of serious health risks or endangering the life of the pregnant woman. Current regulations, such as Mississippi, contain such exception clauses, but the extent to which these are constitutionally required remains open to draft judgment.

In practice, this raises a number of questions, because in some cases severe penal sanctions against physicians without clear exceptions often affect physicians’ willingness to perform legal abortions.

In (former) Ireland and now in Poland, with similar regulations, deaths of pregnant women occurred again and again. This boycott is problematic from a constitutional point of view. The criticism expressed in the draft judgment of the federal decision on the legal right to abortion rights versus Row Wade is understandable and widely shared in the US judiciary.

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Justice for the right to abortion in Rowe stood on the basis of a trembling constitution and allegations of judicial activity were always clear. According to Samuel Alito, author of the draft ruling, the Row ruling was already wrong at the time, leaving no question as to whether abortion is a fundamental right and whether abortion is permissible.

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In the end, this argument is not credible. It is plausible at the outset that judges who are not directly elected should not decide questions that have no clear basis in the text of the Constitution or in the traditional understanding of the law.

As the draft points out, it may also be in the interests of social peace, and it is generally better if the most controversial issues are left to decentralized regulation by individual states.

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Nevertheless, this cannot be right, especially in the case of a constitution that is more than 200 years old and difficult to change, as in the United States. At the same time, the draft leaves the states completely free, without imposing any restrictions, and the judges deny any liability to the most vulnerable women in the event of an unwanted pregnancy.

This responsibility led the Supreme Court judges to establish the constitutional right to an established abortion, albeit a mutation in Rowe.

The leaked draft is better and smoother than Rowe, but it makes us skeptical. The issue of abortion needs to raise questions that are morally and constitutionally difficult. However, Samuel Alito’s soft draft judgment did not allow for these difficulties.

Source: Hailbronner Archive; Fox Archive

James Fox Professor of Foreign and International Law At the University of Munster. Michaela Hailbronner is Professor of Public Law and Human Rights at the University of Gießen.