– In reality, they have a very limited room for maneuver, because the Democrats do not have a large enough majority in the Senate to reverse that decision, says Høgestøl, who is an associate professor at the Faculty of Law at the University of Oslo.
US President Joe Biden said in a press release on Tuesday that it may be the task of the elected representatives to protect American women’s right to self-determined abortion.
The background is a leaked document that shows that a majority of the Supreme Court judges will land on that an important judgment from 1973 should be amended. In that case, the states are in practice free to ban abortion.
EXPERT: Sofie Høgestøl is an associate professor at the Faculty of Law at the University of Oslo. Photo: Kristoffer Myhre / Krismyhre.com
sea view
The final decision from the Supreme Court is expected in June or mid-July. Should it be as the document suggests, the Democrats will have to get at least 60 out of 100 members of the Senate to reverse the decision.
Today, however, they have the narrowest possible majority.
– So even if the party were to get all the democratic senators, they still had to fool nine Republicans. There is nothing to indicate that it will happen, says Høgestøl.
Fear of other rights
First, because the fight against abortion is a core issue for the Republican Party. In addition, there are by-elections in the United States this autumn.
Trump can get his biggest victory
– If a Republican senatorial candidate favors such a law, they risk more conservative candidates standing against them and winning. There are many reasons why this is not realistic.
Biden traveled to Alabama on Tuesday to visit a manufacturer of, among other things, military aircraft and missile weapons. On his way out of the plane, he took the opportunity to go hard against the Supreme Court.
– A wide range of rights is at stake if this decision is upheld, he said, among other things.
Will be able to influence gay marriage
This proposal is about an interpretation of the 14th amendment to the American Constitution, Høgestøl explains.
For the important judgment from 1973 led to this constitutional amendment being interpreted so that it entails the right to privacy – including abortion.
– How will the Supreme Court then view other rights that also come into private life, such as gay marriage? What other rights may be at stake? ask førsteamanuensen, and continues:
– It shows that Biden is trying to make the case bigger, by pulling it from abortion and over to a bigger rights struggle. He probably wants to use it to mobilize towards the midterm elections.
The abortion leak: Hard against the Supreme Court
– The most extreme conclusion
Despite the fact that the document can be interpreted as the Supreme Court has already concluded, Høgestøl points out that it is dated from February. It is not uncommon for such drafts to circulate among the judges, as a starting point for arguing about the wording of the judgment.
– What strikes me about the draft is that they are very bombastic in their use of language. For example, it says that the verdict from 1973 was “extremely wrong from the start”.
– Regardless of the language used: The bottom line will be the same, right?
– Before Christmas, it seemed that the conservative judges were divided on whether they should just take a position on the specific question in the case, or come up with a more principled decision. So this is the most extreme conclusion they could come to.
Secured majority of judges
The reason why the decision stands is that the conservative judges no longer need Supreme Court Justice John Roberts to get a majority.
He has previously signaled that he only wanted to take a position on the specific question in the case.
– Last year, he was the tipping point in almost all the big decisions. But now the conservatives have Amy Coney Barrett, and the conservative majority no longer needs Roberts, Høgestøl explains.
