For Kathryn KolbertWatching today’s news about the Supreme Court is the closest thing to traveling through time. Three decades ago, in 1992, it was she who defended the right to abortion before the judges. His face appeared in newspaper vignettes and his name was sneaked into articles with headlines very similar to those of this Wednesday: the right to abort is hanging by a thread, with judges ready to review one of the most famous sentences in this country , the one that decriminalized abortion almost half a century ago.
Also in 1992 the majority of judges were conservative and Kolbert confesses that “she was afraid of going down in history as the lawyer who couldn’t save abortion rights. Over time I have learned that what you need to win in the Supreme Court is taught by Sesame Street, the children’s program. You just have to know how to count and the only number that matters is five. “And no matter where you look, she didn’t add up to five votes.
Of the nine Supreme Court justices, in 1992 five were conservatives. But in his case there was a surprise: in the last minute, one of the five changed his opinion. Now Kolbert doubts that will happen again. Defenders of abortion rights are alarmed. We look back to review three key dates in abortion history in the United States and explain why December 1, 2021 is one of them.
1973. The most famous case: Roe versus Wade
Jane Roe is a pseudonym, one of the most famous in American judicial history. In 1973 the case of the woman behind that alias, a woman who wanted an abortion, reached the Supreme Court. The sentence made history: the judges considered that it is a fundamental right of women to be able to make the decision to terminate their pregnancy until the fetus is viable. That is, until it can survive outside the uterus, around the 24th week of gestation.
In practice, Roe v. Wade decriminalized abortion. From then on, every time a state tried to pass a law to ban it, it ran into the courts. Some were putting obstacles, explains Kolbert, “such as preventing low-income women from applying for public money to have an abortion, or forcing younger women to have parental consent as a measure to try to dissuade them … but abortion is generally legal“.
For anti-abortionists, Roe v. Wade is the blackest date on the calendar. Prudence Robertson, an anti-abortion activist, argues that that day “the judges made a very undemocratic decision. Our country is based on the fact that each state is free to legislate according to the will of its voters. There are many anti-abortion states, but their hands are tied to legislate on this. “
1992. Another key case: Planned Parethood versus Casey
Two decades after Roe v. Wade, another crucial case was coming to the Supreme Court: a Pennsylvania law that placed restrictions on abortion. Among other things, it forced married women to inform their husbands if they wanted to have an abortion. “All the lights were on the Supreme,” recalls Kolbert, “there was a massive demonstration in Washington”. Because, beyond Pennsylvania law, many feared that the mostly conservative court would seize the opportunity to change its mind and overturn the 1973 doctrine.
In the end, Roe v. Wade was saved with a tagline: that states could legislate and put some limits as long as they did not place an excessive burden on women. In recent years, obstacles have increased in the most conservative states: “Fewer and fewer women have access to an abortion, especially those with low income, or women in rural areas who have to travel many kilometers to find a clinic. To date, only 11% of counties in the United States have a clinic that performs abortions, “explains Kolbert.
In Mississippi, for example, there is only one clinic in the entire state where you can have an abortion, a clinic painted pink, overwhelmed by the calls of women hundreds of miles around. It is the clinic involved in our next key case, the one that now lands in the Supreme Court.
2021. The future of abortion is hanging by a thread again: Dobbs versus Jackson Women’s Health Organization
On December 1, a decisive case reaches the Supreme Court, on a law in the state of Mississippi. Just the fact that the judges have accepted this case has raised the alarm among feminists who defend the right to abort, and it has given hope to the right wing and to the anti-abortion movement.
Mississippi law purports prohibit abortions from the 15th week of gestation. It is not the most restrictive, but it can lead the judges to overturn their doctrine of Roe versus Wade and then each state could legislate at will in this matter. Proposals such as the controversial Texas law, mired in its own legal battle, could proliferate. This law prohibits practically all abortions, those that are practiced from week 6 of gestation, when many women do not even know they are pregnant.
“It is the most draconian I have seen,” says Kolbert, “Establish a citizen surveillance system, anyone can report and get a reward, it is something extraordinary. If the Supreme annuls Roe versus Wade I am afraid that we will see something similar in half of the states. Women will go to clandestine clinics or pills on the black market, they will put their health at risk. “
The same panorama that terrifies Kolbert delights anti-abortionists like Robertson: “This is a milestone, we are very hopeful,” she says, confident that they will win the case. Robertson is a spokesperson for the Susan B. Anthony List organization and explains that her main objective is to promote anti-abortion candidates in every election, candidates who defend “the right to live of the unborn.”
Apart from the battle in the courts, there is another one that is being fought at the polls, and in each electoral campaign the anti-abortion movement has been gaining strength. They celebrate as a “great victory” the three conservative justices appointed by Donald Trump to the Supreme Court. With them, there are now six conservative and three progressive magistrates. If this time the simple rule of Sesame Street does not fail, the rule of counting … The United States is about to turn around on abortion.