On the 10th of December 2021, the US Supreme Court gave its decision on the case Whole Women’s Health, giving the right to pro-abortion activists to fight the Texas Heartbeat Act back to a federal court, but allowed meanwhile the remain into stay of the Act. The next day, the California governor reacted to this decision stating on his twitter account: ‘if Texas can ban abortion and endanger lives, California can ban deadly weapons of war and saves lives’. This demonstrate the vast turmoil in which US is in, since US citizens cornerstone rights are at stake but no unity in the country can be found despite the highest judicial institution ruling.
Abortion against guns’ control: the fight for life
Indeed, last September, Texas passed the SB8 act making abortion illegal after six weeks of pregnancy. However, the subtility of the act is that the right to enforce this illegality is not conferred upon the authority but to the citizens. Thus, any citizens with no link to an abortion case, can sue doctors, abortion centres and state officials responsible for licensing medical providers contravening to the act. This act is a deep infringement to the former Supreme Court Roe v Wade, which granted a right for abortion until twenty-four weeks of pregnancy. The difference of time lapse granted to operate the abortion relies on the fact that the new act prohibits abortion from the moment a foetus’ heartbeat can be detected, whereas the Roe v Wade case departed from the viability of the foetus. Therefore, this restriction on right to abortion is really affecting their life choice, especially since the acts does not foresee any exception in case of rape or incest.
Moreover, the Supreme court decision, which is not making any party a winner, let the door wide open for other states to implement new restrictions on the right to abortion. It is already a matter of fact, that Texas is not the only state implementing such law, Mississippi also passed also a law restricting the right to abortion until the fifteenth week of pregnancy. Another case is pending at the Supreme Court on this issue (Dobbs v Jackson Women’s Health Organization).
Taking inspiration on the Texas Heartbeat Act, the California Governor proposed a bill relying on the same framework than the act, but about gun control. This new bill would allow citizens to sue producers and distributors of assault weapon or ghost gun kit. This bill has good chance to pass the local legislature due to the democrats majority but at the federal level, things are different. Indeed, California already passed a ban on assault weapons, which was first rejected by a federal district court last June, but its decision has recently been overturned by an appeal court. Besides, the local support on such ban can be demonstrated through the Los Angeles City council, which voted a ban against ghost guns. Therefore, it is likely that the retaliation against the SB8 act, will be implemented, but once it would be challenged at a higher level, certainty is not allowed. Actually, the Trump era provided a majority of conservatists justices at the Supreme court, which are dismantling piece by piece a pro-human rights and updated heritage.
The US at the hedge of a deep and heated societal crisis?
First, it is important to remember that the Roe v Wade case, which guaranteed the abortion right has been found by the justices’ interpretation of the fourteenth amendment (granting right to privacy). However, this right is only an interpretation of the US constitution, it is not written anywhere in this document or in any statute. Therefore, one could say that the right to abortion can fluctuate really quickly depending on the majority at the US supreme court, which could allow some liberty to state’s governors to pass anti-abortion act, as it is the case today in Texas and Mississippi.
Furthermore, the acts implemented in Mississippi and Texas may transform the US in a two speeds’ country. Since women of certain states would not be able to get abortion at some point of their pregnancy they would have to go to another state. However, it is not a possibility for everyone, and those without the means to do so would have to either practice abortion herselves or in the illegality, but at what cost? Even the US president is worried about the situation.
Finally, either the SB8 act or the bill suggested by the Governor of California, both grant a great power to citizens, which can lead to deep internal resentment and fight over divergence of opinions. Indeed, gun control and abortion are really sensitive issues and rarely let the space for pragmatism and the time to take a step back to evaluate the broader picture. Everyone has his opinion on those topics, and it can be dangerous to give such power to citizens because it could amount to lynching. In those fights there is no incontestable truth, it is always a question of balancing fundamental rights such as the right to live and decide her life to the mother versus the right to life of the foetus, and also the right to gun ownership to defend himself versus the right to life of the citizens. Therefore, the Roe v Wade heritage shall be protected, but if even the highest court cannot do so, it is up to the lowest level to take action, as it is the case today. However, the retaliation way opted by the California governor may only add oil on the fire. It could be the best moment for higher instances to act in order to avoid any civil unrests and limiting rights of actions.
BIBLIOGRAPHY
Call Matters ‘California scores gun control victory- for now’ https://calmatters.org/newsletters/whatmatters/2021/12/california-gun-laws-court/ accessed on the 16th of December 2021
Courrier International ‘Disparités. Vers un Droit à l’avortement à deux vitesses aux Etats-Unis’ https://www.courrierinternational.com/article/disparites-vers-un-droit-lavortement-deux-vitesses-aux-etats-unis accessed on the 16th of December 2021
Courrier International ‘Etats-Unis. La cour supreme laisse en vigueur une loi du Texas très restrictive sur l’avortement’ https://www.courrierinternational.com/article/etats-unis-la-cour-supreme-laisse-en-vigueur-une-loi-du-texas-tres-restrictive-sur accessed on the 16th of December 2021
Courrier International ‘Riposte. Pour lutter contre les armes à feu, la Californie s’inspire de la loi anti-IVG du Texas’ <https://www.courrierinternational.com/article/riposte-pour-lutter-contre-les-armes-feu-la-californie-sinspire-de-la-loi-anti-ivg-du-texas> accessed on the 16th of December 2021
Oyez ‘Roe v Wade’ https://www.oyez.org/cases/1971/70-18 accessed on the 16th of December 2021
The Guardian ‘the Supreme court’s abortion ruling is even more unsettling than it may seem’ https://www.theguardian.com/commentisfree/2021/dec/11/supreme-court-abortion-ruling-unsettling accessed on the 16th of December 2021
Vox ‘How California plans to copy Texas abortion tactics for gun control’ https://www.vox.com/2021/12/12/22830625/newsom-california-guns-texas-abortion-law-supreme-court accessed on the 16th of December 2021
By The European Institute for International Law and International Relations.
