En focusing almost exclusively on the perverse effects, real or imagined, of “wokism”, the French media forgot that the American culture wars also had a religious dimension, to the right of the political spectrum. These wars have often opposed, for fifty years, a coalition of white evangelicals and conservative Catholics – the “pro-life” – to progressive and moderate currents favorable to abortion – the “pro-choice”. Donald Trump, the president elected in 2016, exacerbated these tensions by promising the appointment of new judges to the Supreme Court, likely to overturn old case law favorable to the “pro-choice” camp.
Things said, things done: the three conservative judges appointed by the Trump administration (Kavanaugh, Gorsuch and Barrett), whose votes are added to those of the two conservative judges appointed by Bush Sr. and Bush Jr. (Thomas and Alito) will allow majority of the Court to overturn the case law of the Roe judgment vs Wade (1973), according to the 67-page draft majority opinion written by Samuel Alito in Thomas Dobbs, State Health Officer of the Mississippi Dpt. of Health vs Jackson Women’s Health Organization. Judge Alito is too fine a jurist to speak of religion as such. His decision is based on a legal technique sometimes described as “originalist”: what is not written by the framers of the Constitution nor in accordance with their intentions is devoid of validity, whatever other judges say, more innovative. , who wish to modernize the Constitution by broadening the meaning and scope of its text. For the latter, the Constitution is a living object which must adapt to changes in society; it has great principles to facilitate this task.
Literal reading of the Constitution
The debate today concerns one of the essential achievements of modern feminism: women have a fundamental freedom, control over their bodies and their reproductive faculties. Where does this freedom come from, first described as a “right to privacy” ? Is it implicitly inscribed in the founding texts of American democracy? Yes, answer a majority of progressive judges (7 against 2) in Roe vs Wade, this freedom does exist: it is deduced from the so-called due process » from 14e amendment, which specifies that“No State shall deprive a person (…) of his freedom (…) without due legal process (without due process of law) ». According to this interpretation, as Michelle and Barack Obama aptly summed up in a recent statement: “The freedom inscribed in the 14e amendment allows each of us to enjoy a sphere of our lives that is free from state interference – a sphere that includes intimate decisions about who we live with, who we marry, use of contraceptives, or the decision to have children or not. » The scope of this freedom is broad, as the Supreme Court affirmed in a post-Roe decision – Planned Parenthood of Southeastern Pennsylvania vs Casey (1992) – which preserves the essence of the Roe case law vs Wade. Carrying out a double analysis, textual and contextual, Judge Alito rejects the existence of such freedom.
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