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Abortion: What the U.S. Supreme Court Really Said

2022-06-25T09:25:10.488Z


FIGAROVOX / TRIBUNE - A connoisseur of the highest American court, François-Henri Briard warns against a "simplistic" and "hostile" view of the decision to end the Roe vs. Wade case law.


François-Henri Briard is president of the Vergennes Institute, which he founded in 1993 with Supreme Court Justice Antonin Scalia.

He is a lawyer at the Council of State and at the Court of Cassation and a member of the Historical Society of the Supreme Court of the United States of America.

The

Dobbs

decision handed down by the Supreme Court of the United States on June 24, 2022 constitutes without any possible doubt a historic judgment whose echo will be considerable.

But the flood of comments it arouses, especially in Europe, unfortunately often stems from incomprehension, arrogant simplicity or even blind hostility, from voices and pens that have never set foot in this temple of American law.

Allow a legal professional who has frequented this supreme court for more than thirty years and who knows its members well, in particular Judge Samuel Alito, rapporteur for this case, to make three comments on the content of the decision, its scope and the respect it demands.

What did the court decide?

The court did not rule on the status of the embryo, nor on the right to life, nor even on the right to abortion.

To tell the truth, she has not even judged anything at all on the substance of this question, of which she has on the contrary underlined the essentially moral dimension.

The federal constitution is neither " 

pro-life

 " nor " 

pro-choice

 ," Justice Kavanaugh pointed out in his concurring opinion.

The court only judged, in a so-called "

originalist " approach

», that the 1787 constitution does not contain, either explicitly or implicitly, any right to abortion, adding that it is up to the people and their representatives to decide on this issue.

In doing so, the court put an end to a jurisprudence of almost fifty years whose intellectual credibility was of a weakness known from the beginning.

Read alsoRan Halevi: “Abortion: will America tear each other apart?”

The construction of the Roe v/ Wade decision of 1973, qualified today as a miscarriage of justice, rested on legally erroneous foundations (interpretation " 

cobbled together 

of the Fourteenth Amendment in the name of privacy, personal autonomy and a certain idea of ​​human freedom) and was, in the words of Judge Byron White, nothing but a manifestation of brutal judicial activism inspired by pressure groups.

It had to be ended and the court presided over by Chief Justice John Roberts did so.

What are the consequences of this decision?

Judge Samuel Alito explains it perfectly in this decision of more than two hundred pages: the federated states are once again free, as they have been for 185 years, to prohibit or authorize the voluntary termination of pregnancy and to determine the terms and conditions, as the State of Mississippi did, for example, in the

Dobbs

case by prohibiting the

As Judge Antonin Scalia pointed out in the Casey case in 1972, only citizens should decide such serious questions, by democratic vote, and not unelected judges interpreting a constitutional text according to their personal moral or philosophical preferences. .

The decision also has absolutely no impact on other fundamental rights (contraception, same-sex marriage, etc.).

Last question: should we respect the ruling that has just been delivered?

As the judge Stephen Breyer, a brilliant Francophile, wrote in his latest book, who unfortunately left the court in a few days after writing a long dissenting opinion in the

Dobbs case.

, respect for the decisions of the Supreme Court, whatever their content, is an essential element of confidence in justice and the stability of institutions.

The decision of June 24, 2022 deserves from this point of view neither more nor less respect than the Roe v/ Wade decision of 1973, which had invented a “ 

constitutional right to abortion

 ”.

"We don't have to criticize or approve, just observe, understand and respect"

It is a court decision, which imposes itself with the authority of res judicata, which gives voice to the people and which presents the merit of great clarity, under the terms of an intellectually exemplary motivation.

It was rendered by members of the court who are neither right nor left, neither conservatives nor progressives, but judges, honest and independent, great legal professionals, who are separated only by questions of legal techniques. interpretation of the federal constitution (textualists vs. constructive) and not by political divisions.

As for the Europeans, and in particular the French, let them show moderation and restraint.

The United States of America is a sovereign nation and the American judiciary is a major element of that sovereignty.

We N'

We are not to criticize or to approve, but simply to observe, to understand and to respect.

Such was the approach of Alexis de Tocqueville in

Of democracy in America

, such must be ours today.

Source: lefigaro

All news articles on 2022-06-25

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