An unprecedented leak from the sacrosanct instances of the US Supreme Court has raised the alarm voice: The conservative magistrates of the highest federal court are preparing to assert their majority to establish a new jurisprudence regarding the right to abortion. The draft signed by Judge Samuel Alito calls into question the sentence of the same court that in 1973 recognized the right of women to have an abortion, and specifies a threat that has brought thousands of women to the streets to protest. Here are a number of considerations to keep in mind.
a political tribunal
The US Supreme Court is like no other court with constitutional functions from any other country in the world. José Luis González Cussac, Professor of Criminal Law of the University of Valencia and member of the committee of experts that advised the socialist government to draft the 2010 abortion law, recalls that “in the design of the American constitutional architecture, the Supreme Court It was not conceived as a purely legal body & rdquor ;, and explains: “In North American culture, the Supreme Court is a mixed body, designed to have an imprint and a transcendence & rdquor ;. Xavier Arbós, Professor of Constitutional Law of the UB, recalls that “the US Supreme Court has always been criticized for its activist nature & rdquor ;, although sometimes it tries to hide it. But he wouldn’t have to. He carries it in his blood.
Consensus issue?
It is important to highlight it, because one of the arguments of the conservative judges is that the 1973 ruling, “far from achieving a national consensus & rdquor ;, fueled the debate and accentuated the social division. But, let it be known, it is not the duty of justice to keep everyone happy. “Justice, in fact, is not there to generate consensus, the consensus to which it gives rise is to the laws & rdquor ;, Gonzalez Cussac says. “So it is not a legal reasoning, because no decision about abortion is going to enjoy consensus & rdquor ;. “If the Supreme Court always acted like this, in search of consensus & rdquor ;, adds Arbós, “surely US citizens would lack many rights that they have today. In addition, the desire of the majorities in power should not be confused with consensus & rdquor ;.
A fragile doctrine
According to the leaked document, one of the arguments of the conservative Supreme Court judges is that abortion is not included in the Constitution. And what Constitution recognizes it? “I am not aware of any Constitution that expressly protects the right to abortion, what they can recognize are the rights of women & rdquor ;, Arbos explains. “In addition, the US Constitution and its amendments are many years old and far from the new social realities.” In this sense, González Cussac says that it is absurd “to interpret the constitutions literally, and least one that is more than 200 years old & rdquor ;. “From a legal point of view, it is a poor, inconsistent and dangerous argument. If it were universalized we would have serious problems to maintain the development of many rights that we currently have & rdquor ;.
intrinsic brittleness
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The Majorcan lawyer Maria Duran He was also part of the committee of experts that once advised the Government of José Luis Rodríguez Zapatero. Today she is the director of the Institut Balear de la Dona, and her opinion is that if the jurisprudence that established the 1973 ruling is revocable This is because its targets are women. “All the rights that are recognized for women are fragile because they affect an established patriarchal system in which one of the axes is the subordination of women & rdquor ;, he says, and adds: “What the constitutions have to protect is the right of women to decide if they want to be mothers, when and how, the right to abortion derives from that & rdquor ;. For her part, the Secretary for Feminisms of the Conselleria d’Igualtat i Feminismes de la Generalitat, Montserrat Pineda Lorenzo, remember that there is a movement determined to limit the sexual and reproductive rights of women than is usually spearhead, precisely, the conservative judiciary. But, he stresses, “an attack like this is against all those who defend human rights and democracy.”
Symbolic value
No one is oblivious to the fact that we are talking about the United States, the alleged beacon of the West. “The blow that this can happen in the US It is very important for its symbolic value & rdquor ;, says Pineda, although he highlights the strength of the movements for the defense of women’s rights in Argentina, Mexico or Chile, countries closely linked to the United States. “It would be a huge setback, and at the same time a provocation for feminist organizations, that they will not sit idly by & rdquor ;, says Duran. For González Cussac, if the threat materializes, it would imply “a change in the trajectory of the trend over the past 50 years in the Western Hemisphere, where all legislations have walked towards decriminalization & rdquor ;. “The United States”, says Arbós, “had reached a solution 50 years ago that seemed to have consolidated a vision of abortion as a women’s right, and now it seems that the Constitution does not serve for this. Difficult times are coming for women living in conservative states & rdquor ;.