The Platform


The U.S. Supreme Court recently overturned Roe v. Wade, which had long secured the right to abortion in the United States. Following this, Republican-led legislatures have proposed a slew of restrictive abortion measures. According to critical legal studies (CLS), the court’s decision would be in furtherance of the political milieu fostered by the government.

Critical legal studies adherents claim that politics and the law are closely intertwined and that the law is neither “neutral nor value-free.” Between 1977 and 1992, CLS adherents sought to understand why legal doctrines and principles do not always provide conclusive solutions to particular legal conflicts as well as how judicial decisions reflect evolving political and cultural norms.

In 1972, a year before Roe v. Wade was decided, there was a fierce political debate around the issue of abortion. U.S. politicians like Richard Nixon used abortion to mobilise voters. When America was riven by a cultural war, Nixon’s campaign noisily claimed that a vote for George McGovern was a vote for drug legalization, amnesty for draft dodgers, and abortion.

This strategy won over pro-life Catholics, and Nixon won the Catholic vote by more than 50%. Ronald Reagan also adopted an anti-abortion stance. He apologised to Republican primary voters in 1980 for signing a liberal California abortion law, stating that medical professionals had subverted it. Thirty-six years later, Donald Trump disavowed his own pro-choice views.

CLS adherents influenced the attitudinal model in political science, which claims a judge’s ideology and policy preferences may impact his decision-making more than the law. Donald Trump used judicial independence as a weapon by nominating judges who make decisions based on personal policy preferences. Three of the five conservative Supreme Court justices who voted to overturn Roe v. Wade—Brett Kavanaugh, Neil Gorsuch, and Amy Coney Barrett—were appointed by Trump. Abortion, according to Barrett, is “always immoral.” Trump, who was running for re-election at the time, benefited politically from her stated Catholicism, but not enough to win re-election.

Unfortunately, the U.S. Supreme Court is now the legacy of a politician who brings along political viewpoints and political party aspirations. Its choices will be influenced by politics, supporting the CLS premise that law is not independent of politics. While not the same as political science, juridical science is a branch of it. This is an ancient idea given new life by critical legal studies proponents who recognise the link between politics and judicial decision-making. Politically motivated judges picked by unscrupulous politicians are undermining a woman’s right to make her own medical decisions regarding her own body.

Abortion restrictions are the product of not only politicians’ influence for personal gain but also affluent activists who run conservative legal organisations. One of these groups, the Federalist Society led by Leonard Leo, has had an outsized role in putting conservatives on the Supreme Court. Leo personally curated a list of potential SCOTUS nominees and it was promoted by Trump. The list helped Trump convince conservatives who were unsure if he would reflect their beliefs once in office, according to journalist Ruth Marcus, who wrote about the Federalist Society in her book, Supreme Ambition: Brett Kavanaugh and the Conservative Takeover.

According to a Washington Post investigation, Leo and his colleagues raised $250 million from anonymous donors between 2014 and 2017. And a significant portion of that money has been directed straight to campaigns to promote conservative judges and causes championed by the religious right.

In CLS’s perspective, the treacherous political framework being handled by the wealthy by pouring money into getting judicial decisions that favour their beliefs is a weapon used by the powerful to maintain its ability and control over the impoverished or unequal status quo. The Supreme Court did not outright ban abortion, but leaving it to individual states to regulate abortion shows that states will be able to impose their moral choice on women and coerce them to have a child, as well as impose criminal penalties on abortion providers, which will disproportionately affect poor women and women of colour. After Roe v. Wade, numerous Republican-led states, including Alabama, Arkansas, South Dakota, Kentucky, Louisiana, Missouri, and Oklahoma, banned abortion with specific restrictions.

In the United States, 75% of abortion patients are low-income, and 49% of them are living below the poverty threshold. Wealthy women can traverse state boundaries to obtain a safe abortion, but this is not the case for impoverished women who lack the transportation to obtain the abortion services that they require. As a result of these discrepancies between states, thousands of pregnant women will become reproductive rights refugees, fleeing their home states to seek legal, safe abortions in neighbouring states. There will also be illegal abortions, which will make them far more hazardous, legally, medically, and financially.

The procedure will only be accessible to women based on where they live. Most importantly, this type of discrimination violates the right to equality, non-discrimination, health, and privacy guaranteed by the U.S. Constitution. The overuse of the legislative, executive and judicial powers to limit and criminalize abortion rather than to promote it and provide equal access to secure abortion services indicates a fundamentally alarming degradation of democratic ideals and process.

CLS theorists would explain this as indeterminacy in legal principles and doctrines, which is riddled with gaps, disputes, and anomalies that are prevalent even in basic circumstances. It stems from the underlying political power – law is politics – which implicates law as nothing more than an instrument for tyranny. Furthermore, states that impose time limits on abortion, such as Mississippi, which prohibits abortion after 15 weeks, will affect poor women and women of colour differently since the conditions they live in make it impossible for them to access early abortions.

These facts seem to refute the idea that American law was inherently just and the result of historical development; rather, it appeared to benefit the wealthy and powerful. Powerholders must realise reproductive rights aren’t abstract concepts. It is necessary to take into account the current social and economic circumstances when deciding how these rights can be exercised and which portion of the population will be empowered to do so.

The decision to overturn Roe v. Wade is a step toward authoritarianism. Under the guise of “originalism,” conservative justices undermine democracy. CLS aims to overthrow what it perceives as an unjust social system’s political and philosophical authority. CLS theorists criticise individualism in a liberal society and call for a fresh emphasis on communal rather than individual values, which in my opinion is crucial for sensitive issues like abortion.

Jahnavi Pakanati is a 5th-year student at National Law University Odisha. She is passionate about Women’s Rights, Child Rights law and Public Health Law.