Since the US Supreme Court reformed the decision that prevented abusive restrictions on the right to abortion, many began to criticize the deliberation that allowed the procedure to be carried out until then, either because of its grounds, which the judges now consider inadequate, or due to to the initiative it represented. They also criticized it for understanding that it lacked the legitimacy of law.
In 1973, when Roe v. Wade was decided, the court still lived under the credit of a period when it played an extremely important role in securing civil liberties and protecting minority groups.
Between 1953 and 1969, the court ordered an end to racial segregation in public schools and public transportation, outlawed confession in criminal cases without legal assistance, and guaranteed representation proportional to the population in electoral districts, among many other advances. .
It was shortly after this period, known as the Warren Court, in reference to its president, Earl Warren, that the decision in the Roe case was handed down. Since then, with few exceptions, the Supreme Court has become more conservative and its decisions are increasingly permeated by political contours.
Now, with the reform of the 1973 decision, the question is: did the court make the country go back 50 years or did it restore the will of the people, who would not have swallowed the deliberation? The second question leads to another, long-discussed: by issuing decisions that create rights not expressly provided for in the Constitution, as was the case in the Roe case, is the Supreme Court usurping the attribution of the Legislature?
These criticisms start from some mistaken assumptions. For some jurists, the constitutional courts could not produce norms and, although they have the power to say whether a law, against the Constitution, is valid or not, they could not act as if they were enacting a law.
Since the issue of abortion in the US was regulated for almost 50 years by the Judiciary, not the Legislature, followers of this current claim that the court, at the time, assumed a competence that would be exclusive to legislators. Hence, it is speculated that Roe’s decision was reversed because it would not have had legitimacy at the time nor would it have been legitimized over the years.
This view, however, does not take into account a function that constitutional courts have in modern societies, that of defending fundamental rights, especially those of minorities. In the legal world, it is called the countermajoritarian function of the jurisdictional power – a complicated name for a simple matter.
Majorities are considered to be very well represented, influential and have a good chance of asserting their rights. But other more vulnerable groups with less power of political representation, such as women, blacks, LGTBQIA+ and many others, barely have a voice. Thus, in summary, the control of constitutionality would serve as a mechanism for the protection of fundamental rights.
By banning states in 1973 from imposing abusive restrictions on abortion, the court exercised this protective function. Women, at the time and still today, are still underrepresented in Congress and in high spheres of power. Thus, the decision in Dobbs v. Jackson Women’s Health Organizations, which reformed Roe v. Wade, restores a very harmful situation to the condition of women.
Contrary to what has been said, the importance of the Roe case has not been recognized since the year the decision was handed down — nor was it the decision that made the abortion issue so polarized in the US. The discussion between Democrats and Republicans on the subject has changed over the last 49 years, suffice it to say that in the 1970s it was the Republicans who supported the decision.
Roe vs. Wade was elevated to a paradigmatic case much later. In the podcast “Direito e Sociedade”, Gabriela Rondon showed that researchers in the US understand that the Republicans’ opposition to abortion was a strategy to attract the Catholic electorate, traditionally more linked to the Democrats.
In addition to legal considerations, there is evidence that the restriction on voluntary termination of pregnancy does not reduce the number of abortions. On the contrary, it increases the risks to the health of women, who will continue to seek the procedure, with less trained professionals and in rudimentary conditions.
Considering the current composition of the Supreme Court, the Dobbs decision will certainly prevail for many years to come. American citizens, the majority of whom are in favor of the right to abortion, will have the Legislature’s path left to ensure that termination of pregnancy is not subject to exaggerated obstacles.
