United States: the end of the constitutional right to abortion is probably only the beginning

United States: the end of the constitutional right to abortion is probably only the beginning

“The Constitution does not prohibit the citizens of every state from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We are now reversing those decisions and returning that authority to the people and their elected representatives.” The hard-hitting words of Judge Samuel Alito complete a fierce fight of almost half a century against the right to abortion.

How did the highest American court come to overturn the famous case law of January 22, 1973? Where will the end of this lead constitutional right?

Roe: a fragile case law

Justice Alito’s argument rests primarily on two elements: first, the right toabortion is not explicitly enshrined in the Constitution. Second, the viability test of Roe v. Wade is arbitrary because it does not rely on any legal basis.

That being said, it should be remembered that the right to an abortion, recognized in the Roe case law, finds its source, among other things, in the right to marital intimacy recognized seven years earlier in the case law Griswold v. Connecticut. This right is itself bitterly disputed.because inferred from the texts of the 1er3e4e and 9e constitutional amendments.

In 1973, Judge Harry Blackmun and six other judges ruled in favor of Norma McCorvey (Jane Roe): the 14the amendment protects the right to privacy against any state action. It is this jurisprudential construction of the 1960s and 1970s that is being attacked today.

Press on the Glucksberg judgment of 1997 – which concludes that the Constitution does not confer a right to assisted suicide – Judge Alito recalls that “[nous] clearly stated that a fundamental right must be “objectively, deeply rooted in the history and tradition of this nation””, which he and his majority consider not to be the case with regard to abortion. This “tradition-based case law”to use the words of the jurist William J. Haun, places Judge Alito in the right line of Professor Alexander Bickel, apostle of “judicial restraint”.

While this traditionalist approach is not new –in 1923 the Court already underlined “the rights long recognized by the common law»–, Judges Alito and Thomas seem to push it further than before, to the point of extricating themselves from the standard degrees of constitutional review: with regard to from 2e amendmentThomas J. held that gun regulations must have a historical basis: “To be clear, even if a modern regulation is not an exact copy of the historical precursors, it may nevertheless be analogous enough to be constitutionally consistent.”

For the majority of the Court, errors and weaknesses in reasoning merge.


In conclusion, the right to possess and carry a weapon escapes the three standard levels of judicial control – making its regulation particularly complicated – while theAbortionnow in the hands of the legislatures, can be restricted from the moment the State can prove a “legitimate interest” in doing so: in English, we speak of “rational basis review”which is none other than the weakest judicial review of the three.

The clear objective (and supported by both the State of Mississippi and the many “friend of the court briefs” received – “amicus curiae briefs”) was therefore to break with Roe and Casey by ending it. All in all, in addition to the two main points mentioned above, the five judges broke with the rule of precedent (“stare decisis”) due to five factors including:

  • The nature of the errors made in Roe and Casey
  • The quality of their reasoning
  • Their applicability

Roe and Casey, “obviously wrong”

For the majority of the Court, errors and weaknesses in reasoning merge: calling Judge Ruth Bader Ginsburg as a witnessthe opinion states that Roe has “interrupted a democratic process”an interruption which materialized in a fragile jurisprudence, based on a “constitutional analysis […] far beyond the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely referred”. severe, the judge Alito reiterates that neither text, nor history, nor any precedent can support the reasoning that gave rise to Roe.

As if to contradict Judge Breyer’s dissenting opinion, Judge Alito asserts that the Casey case law has certainly reaffirmed Roe, but at the cost of a partial reversal. The magistrate recalls that Casey ended the quarterly framework and introduced a new standard for constitutional review: the “undue burden” (“undue burden standard”).

This standard, which considers unconstitutional any measure representing a “substantial obstacle” access to abortion, has remained decried because of the lack of methodology to assess what a substantial obstacle is. If the changes made are fundamental, Casey nevertheless retained the criterion of viability.

The open door to the “fetal personality”

Seeking to demonstrate the arbitrary and unfounded nature of the criterion of viability, Judge Alito relied, among other things, on a well-known philosopher in the field of moral philosophy: Peter Singer. Questioning the meaning to be given to the term “person”, the judge noted that the attributes often attributed to him are: the capacity to feel (or “sentience”), the capacity to be aware of oneself, or still the ability to reason.

He concludes that “According to this logic, the question of whether even born individuals, including young children or those suffering from certain developmental or medical conditions, deserve protection as ‘persons’ remains open”.

If this passage from the opinion of Judge Alito should challenge, it is because it opens the door to the recognition of the fetal personality.


Such remarks are reminiscent a famous footnote of the’Introduction to the Principles of Morals and Legislation from the British Jeremy Bentham: “That the other [critère] should draw the impassable line? Is it the faculty of reasoning, or perhaps the faculty of discourse? But an adult horse or dog is, beyond all comparison, a more reasonable animal, but also more susceptible of social intercourse, than an infant of a day or a week, or even a month. »

If this passage from Judge Alito’s opinion should call out, it is because it opens the door to the recognition of the fetal personality, which is already the next goal for the american right. If the term “person” present in the 14e amendment were to be interpreted to include “the unborn child”, then abortion would be unconstitutional. Twelve pages earlier, the judge defended himself from wanting to determine whether prenatal life should enjoy rights granted after birth…

The False Moderation of Judge Roberts

As usual, Judge John G. Roberts Jr. played his part as magistrate falsely moderate, contributing to the judgment but not to the result: he considers in conclusion that all pre-viability abortions are not unconstitutional (this was the question the Court had to answer), but without questioning Roe.

Judge Alito thunders that the due process clause does not confer a right to assisted suicide.


The one who had subtly slashed the Whole jurisprudence Woman’s Health v. Hellerstedt in 2020 in the June Medical case therefore argued for safeguarding the right to abortion without the criterion of viability, without however specifying how to replace this criterion. How can the right to abortion be protected without specifying the conditions for exercising this right? The judge did not answer it, and his opinion resounds like a “we will see that later”.

In contrast to Justice Roberts’ faux moderation, Justice Thomas wasted no time in calling for more.

Other rights at risk?

Reactions were numerous when reading the competing opinion of Judge Clarence Thomas. Longtime opponent of the concept of “due process noun” (summarized very briefly: the due process clause does not only concern procedure, but also protects fundamental rights), the latter has already called for a review of certain case law:

If the judge appointed in 1991 by George HW Bush points out that these rights could (the conditional is more than necessary) be covered by the privileges and immunities clause (“Privileges and Immunities Clause”), it is difficult not to interpret his opinion as the will to put an end to it. On the contrary, the majority opinion and the concurrent opinion of Judge Kavanaugh affirm on several occasions that none of the rights mentioned should be considered in danger.

However, on page 13, Judge Alito thunders that the due process clause does not confer a right to assisted suicide and recalls that a fundamental right must be “deeply rooted in the nation’s history and tradition”. the devil is in the details.

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