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analysis

The leaking of a draft Supreme Court ruling that would overturn protections for abortion set in motion a new phase of fractious American politics that has vast, formidable and unpredictable implications in a country already riven by wide divides.

By reversing Roe v. Wade, the Supreme Court would signal a fundamental shift in American social policy and would recast the lives of women, shape the profile of the Congress that will take form after the midterm congressional elections and thrust the high court into prominence it has not possessed since 1954, perhaps since 1857.

The final decision will not be revealed until early summer, and both internal court debate and the reaction to the leak might well shape the final decision, a prospect that could – in this fractious time and on this volatile issue – itself create a furious reaction.

The leak Monday night brought throngs to the street outside the Supreme Court. It may bring throngs to the voting booths this November, when Americans go to the polls in their biannual elections for Congress, which very likely will be the next forum in the abortion politics that have roiled the country for two generations. The Democrats have thin majorities in both chambers that could be enhanced by angry progressives opposing this potential ruling or, just as likely, be eliminated by turbocharged conservatives determined to prevent congressional action to blunt it.

The Supreme Court is above all a political body. It reacts to politics. (The court retreated from its assault on the New Deal after Franklin Roosevelt threatened to expand the court in 1937.) It creates politics. (The court’s 1857 decision on the fugitive slave law and its 1954 decision on racial desegregation set in train vast political change.) And, above all, it practises politics, which may be the motivation of this leak. (Drafts of decisions like this one are part of the internal politics of the court, sometimes prompting negotiations and adjustments in the final decision.)

All of these are in play – and there is almost no precedent in American history.

The three decisions with broadly comparable political and social implications all had robust court majorities. The Roe ruling creating abortion rights and the Dred Scott decision stating that a one-time enslaved person living in a free state was not liberated from bondage both came with 7-2 votes, and the Brown v. Board of Education desegregation decision came with a 9-0 vote. If the tentative lineup on Roe remains unchanged, the vote could be 5-4, both reflecting and broadening the divides in American life that also have few precedents.

The timing of this leak, and ultimately the timing of the ruling, bring immense electoral implications. Voters are preparing to vote in several midterm congressional primaries, including in Ohio where abortion has been a fiery issue for decades. The final decision will surely be an issue in the general election in November, mobilizing both liberals who deplore the overturn of abortion rights and conservatives who have been mobilizing for this since 1973.

The eventual implementation of the draft, written by Justice Samuel Alito, would be a departure for the court, which often prefers to rule around the edges of precedents rather than overturn them. Even so, Justice Alito cited several occasions when the court took on its earlier precedents, including the 1896 Plessy v. Ferguson decision, which permitted racial disparities if the facilities involved were “separate but equal”; by shifting the grounds of argument from Constitutional doctrine to social science evidence, the justices ruled in favour of school integration.

Indeed, there remains the possibility that Chief Justice John Roberts, unusually sensitive to his institution’s profile in American life, might prevail upon his colleagues to narrow their ruling. Such negotiations, like drafts of rulings, ordinarily are conducted in deep secrecy, adding to the aura of mystery that surrounds the court but were punctured by the leak, which itself had one important precedent: the Roe decision itself, provided to Time magazine.

The retention of the essence of the draft could create a Newtonian equal-but-opposite reaction, prompting the overturning of the Senate’s filibuster rule. That would open the way for congressional codification of abortion rights on a simple majority vote while the Democrats still hold power on Capitol Hill, though it also would open the possibility that a new Republican majority would use the same powers to countermand the Democrats.

If the decision stands, the ruling would immediately ban abortion in a quarter of the states and, by year’s end, likely result in its ban in half of them, predominantly in the South and Midwest. The number of abortions in the United States is about 630,000 a year, about the same number as in 1973, when Roe was issued, and fewer than half the number of abortions at the 1990 peak. The abortion rate in the United States is 20.8 per 1,000 women aged 15-44 annually, according to the United Nations, as compared with 15.2 in Canada.

The 1973 Roe decision created decades of political upheaval, prompting angry marches in the capital each January on the anniversary of the ruling. The tumult was matched in modern times only by the 1954 desegregation decision, which created waves of political turbulence that took its immediate form in what was called “massive resistance” to school integration but that continues to shape American politics today.

The only certainty in this political environment is that even if the draft decision becomes the final ruling, it will not provide the last word, and surely not the last words, on abortion in the United States.

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