Lhe conservative majority of the United States Supreme Court is preparing to reverse federal protection of the right to abortion, putting millions of people at risk of being forced into unwanted or even dangerous pregnancies, until the end. Written by Judge Samuel Alito, this project, which would have devastating consequences, is based on fallacious reasoning which measures the legitimacy of a right according to its seniority in the history of the country.
The interpretation of the history of the United States is at the heart of the arguments of Judge Alito, appointed by George W. Bush in 2005. The draft decision suggests, between the lines, that it would be possible to establish degrees of legitimacy for rights by dating them in history. “This right was completely foreign to American law before the last decades of the 20th century.and century “wrote Judge Alito about abortion to attack its merits.
To determine the existence of a constitutional right in light of the 14and amendment, the judges of the Supreme Court can subject this right to several examinations.
In 1973, the judgment Roe v. wade established that the right to abortion fell within the right to privacy set out in the 14and amendment. For Mr. Alito, however, it would be a question of subjecting this right to a so-called “substantial” examination, for which it is necessary to judge the anchoring of the right in question in the American tradition as well as its fundamental interest in terms of freedom. Under this procedure, a right is considered constitutionally protected when it is “deeply rooted in the history and tradition of this nation”and Judge Alito declares that “the right to abortion does not belong to this category”. But what is probably most rooted in “history and tradition” Americans, it is indeed the inequalities that structure this society. This country, built on the system of slavery, has for the vast majority of its history conferred rights and privileges only on white male landowners.
Although Mr. Alito was careful to make it clear that his decision related only to the right to abortion, this reasoning in itself risks calling into question other great advances of the civil rights movement, which have largely been based , in their legal aspect, on the interpretation of 14and amendment.
Legal and explicit racial segregation was only abolished in 1954 by the judgment Brown v. Board of Education, which condemns the existence of segregated public schools. It was in 1967, in the judgment loving v. Virginia, that the Supreme Court declare the ban on interracial marriages, as it then still existed in Virginia, unconstitutional.
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