Is the Supreme Court ruling “Dobbs VS Jackson” fair?

April Gordienko Lopez
MSc. in Public Administration and civic activist

Abortion is one of the most polarizing issues, as shown by the inflamed and opposing reactions generated throughout the world by the recent resolution of the Supreme Court of Justice of the United States (CSJEUA) that revoked the iconic sentence of the case “Roe vs. wade”. The error known asDobbs vs. jackson”, made a new interpretation of Amendment X to the North American Political Constitution, which says: “The powers that the Constitution does not delegate to the Federal Government nor prohibit to the States, are reserved to the States respectively or to the people”. Since abortion is not expressly enshrined in the Constitution, the magistrates consider that it is not a constitutional right; therefore, it returns to the situation prior to 1973 and the permission or prohibition of abortion is left to the decision of the congresses of the 50 states.

Is this sentence fair? There is no easy answer and no single perspective. From a legal point of view, the answer will vary depending on the philosophical current followed. For legal positivists, validly issued law is just; therefore, if a sentence conforms to the law, it is inherently just. Other currents, such as legal realism, are openly opposed to dogmatic positivism and see Law as a set of assessments of collective interests and their impact on the society in which it is applied; then, the judge is not simply the “mouth” of the law, but is its interpreter, and as such, is a co-creator of Law with a high potential to generate significant social transformations. The sentence of Roe vs. Wade was, in my opinion, of a legal realist court; that of June 24 was strictly positivist.

The rulings also have a political dimension. The appointments of the members of the CSJEUA are eminently partisan-political. The current make-up of this entity has a conservative predominance (6 magistrates appointed by the Republican party) whose criteria prevailed over that of the 3 members nominated by presidents of the Democratic party, considered progressive. In other words, in this ruling the political dimension of the majority of Republican magistrates and a strictly positivist interpretation of the Constitution and Amendment X converged.

The ruling will be for several years at the center of the North American political debate -and surely of the world-. It is expected that in a very short time practically half of the US states (those with a Republican majority) will restrict or totally abolish abortion. Of course, the issue will have a big bearing on the US midterm elections.

On the other hand, the ruling rekindled the flame of the struggle between the groups called pro-life and pro-choice (pro-choice). From the point of view of religious morality, it is unacceptable, even monstrous, to superimpose the right of choice of the future mother over the right to live of the unborn; therefore, the ruling is satisfactory to most believers. Until a few years ago, I myself, who consider myself pro-life, would have been very satisfied with the sentence. But my perspective of what it is to be pro-life has evolved and my vision is more imbued with legal realism.

Today, a conflict cohabits within me between my moral-spiritual values ​​and my realistic vision of the law and public policy. I recognize the inherent value of human life in gestation and the consequent right to be protected. However, I also recognize that women have the right to decide about our lives – a much broader concept than “our body”, called the “right to privacy” by the failure of “Roe vs. Wade“-. A pregnancy, wanted or not, radically changes a woman’s life forever, for better or for worse. Even more so if it is not wanted or planned, if the mother is a minor, if the pregnancy entails a risk for her life, if it was the product of a rape, if she is in a condition of extreme poverty, if she does not have a responsible partner, among many possible situations.The context is also decisive for the future and the quality of life that the unborn child will have. Will he be deprived, will he be abandoned, will he finish school or will he fall into criminal networks?

Is abortion a strictly moral dilemma or a public health problem? Is it an act of debauchery – a sin and a crime – or a fundamental freedom? What limits should be placed on that freedom? To what extent should the State intervene in that decision? And, no less important, where was the State before those pregnancies occurred?

Is it more criminal to force an 11-year-old girl raped by her stepfather to complete a pregnancy, or to make her abort? Is it fair to punish a girl in a state of poverty with little schooling and no sexual education, because she did not feel prepared to bring a child into the world and she did not have anything to offer her? What opportunities for well-being and social mobility await these mothers and their future children? The list of situations is endless. Should particular circumstances weigh when deciding between two lives understood in a broad sense?

This is the most twisted of wicked problems. An individual dilemma, but also one of very complex public policy that borders on sensitivities of a different nature and involves very diverse edges; therefore, outside the internal forum, it is not resolved with an exclusively positivist, ideological, religious, or moral approach.

It does not have a happy ending, because it does not cause happiness even for those who see it as a right. It is not an irrelevant decision for any woman in any situation. It shouldn’t be in any society. It should not be the first, but the last resort. It should have more restrictions depending on the progress of the pregnancy (the ruling “Roe vs. Wade” was clear in this sense and affirms that the right to one’s own body is not unlimited). Whoever is in this situation must receive technical and emotional support, including spiritual if you will, at all times. So, the State does have a fundamental role to play: in offering quality education and training in values ​​and skills for life and decision-making, in generating equal rights and opportunities, in providing security for girls, young people and women of any age to reduce rape rates, to provide sufficient information on sexual, reproductive and affective health, and a health system in accordance with it. Among other things.

The laws and public policy decisions that restrict or expand the rights of the unborn, women and any other social group must be nurtured from various perspectives. A look at the statistics offers some useful light. According to data of the World Health Organization and independent scientific studies, practically since 1990 the number of abortions in the world has not changed: 73 million a year (39 abortions per thousand women). In contrast, the number of countries, mainly more industrialized, that have liberalized abortion laws has increased. At the same time, the average rate of abortions in countries where it is legal – except China and India – fell 43%. By contrast, in countries with severe bans, the rate increased by about 12%.

In nations where access to reproductive health services has been expanded, the safety of abortions has improved and maternal survival has increased. About 90% of procedures where abortion is allowed are considered safe, compared to only 25% in countries where it is prohibited. Between 5 and 13% of maternal deaths in the world are due to complications in unsafe abortions, the majority in underdeveloped countries.

One last fact: researchers from the universities of Chicago and Stanford estimate that due to the legalization of abortion, general crime in the United States fell 17.5% (1% per year) between 1998 and 2014 – from 2 to 3 decades after Roe vs. Wade-. The study concludes that legalized abortion reduced violent crime by 47% and property crime by 33%, and thus may explain most of the observed crime decline.

Are these references enough to totally or partially liberalize abortion in any society? They should at least be consulted when legislating and deciding on the subject. Public policy must be based on objective data and contextualized considerations. In the private sphere, on the other hand, the values ​​and conscience of each person prevail.

Is the Supreme Court ruling “Dobbs VS Jackson” fair?