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When, in 1973, the Supreme Court of the United States made abortion a right in its sentence Roe vs. WadeWhat it did for many people was to give women the decisive voice in a complex matter that calls for responsibility over their lives. The court was finally embracing the changes already taking place in society amid a deafening noise that was intended to reduce the debate to the rhetoric of death and guilt. But there are social changes that become inevitable and end up being established. “The judiciary then adapts to the new order,” says Judith Shklar, an emblematic theorist of liberalism who speaks of a “conservatism of consensus” in her work. Legalism. The judiciary must seek social consensus to be neutral and keep the necessary distance in interpreting the law, since the courts are expected to interpret it, not alter it, and by obviating social consensus, “neutrality evaporates” .
So the path taken by the court in its new rendezvous with history in examining the Mississippi law prohibiting abortion beyond 15 weeks is a worrying detour. The deliberations, dominated by conservatives, are inclined to review the law that recognizes the constitutional right of women to dispose of their bodies and to abort. If the decision were upheld, so would the triumph of Trump’s court design, one of his most important political battles, having located the reactionary Neil Gorsuch, Brett Kavanaugh despite accusations of sexual assault, and Amy Coney Barrett , explicitly anti-abortion, as life magistrates who arbitrate and interpret the Constitution. Reviewing the right to abortion at this point represents an unprecedented politicization of the highest judicial institution in the country. The liberal judge Sonia Sotomayor warned: “Will this institution survive the stench that would create, in public perception, the idea that the Constitution and its reading are only political acts?”
His warning is chilling, as it speaks of how democracies weaken and die as their institutions fall into irrelevance, when judges are sought to arbitrate political tensions. Increasing the interference of political interests in justice vitiates central concepts for the rule of law, such as “neutrality” or “independence”, although perhaps the case sheds some light on the seriousness of what is happening here, with access to the Court Constitutional (TC) of the not honorable Enrique Arnaldo, elected after the well-known blockade of the PP, the surprising acceptance of the PSOE and the attitude of the judges, confirming what Shklar points out: “When changes directly affect the judicial establishment, conservatism becomes in immobility ”. Because the TC must rule on the abortion law of 2010 by the appeal of the PP, although we hope that Sotomayor is wrong and we do not get the stench or loss of prestige, if any remains.
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