Roe v Wade on the Chopping Block, A Long View
The fine legal minds of the State of Mississippi have conjured up a legal case that represents a direct challenge to decades of legal precedent established by a Supreme Court ruling legalizing abortion.
On Monday morning the Supreme Court announced its reconsideration of the the constitutional prohibition against abortion bans before fetal viability. This decision indicates that the ultra-conservative five-justice majority is prepared to move aggressively against Roe v. Wade rather than tinker around the edges of abortion rights.
At issue will be state laws seeking to outlaw abortion at early—and perhaps all—stages of pregnancy.
It seems likely the justices took this case for the express purpose of overturning Roe and allowing the state governments to enact draconian abortion bans that have been considered unconstitutional for nearly half a century.
Dobbs v. Jackson Women’s Health Organization is the case in question In 2018, Mississippi passed a law forbidding abortions after 15 weeks.
The real purpose of the legislation wasn’t to restrict abortion in the short term. It was crafted specifically to contest Supreme Court precedent protecting abortion rights. In Roe and later decisions—most notably Planned Parenthood v. Casey—the Supreme Court held that the Constitution forbids bans on abortion before the fetus has achieved viability.
Typically the Supreme Court takes on cases that have divided courts of appeals so as to provide a definitive answer that applies nationwide. No such split in the judiciary exists regarding the binding precedents concerning abortion. It’s safe to say there is no reason for the Supreme Court to hear Dobbs unless it wants to abolish this standard.
This case originally included several options for a more limited ruling; its petition to the court included a question that would’ve let the court modify the standard for abortion restrictions without overtly killing off Roe. They’ve passed on that offering and agreed to consider the central question in the case: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.”
The confirmations of Justices Brett Kavanaugh and Amy Coney Barrett during the Trump administration have eliminated the need for a conservative legal strategy chipping away at Roe until it became a hollow promise. Half measures won’t do for the new conservative majority; a ruling on Dobbs will have emaciated Roe v Wade.
https://twitter.com/SawyerHackett/status/1394309981332283398?s=20
The Supreme Court will likely hear arguments on the case in the fall, meaning a ruling could come down in summer 2022 — just a few months ahead of midterm elections that will decide party control of the narrowly divided House and Senate.
If the Court rules in a way that overturns Roe v Wade in the case it just agreed to take, ten states have laws on the books that would immediately ban abortion, and nine additional states have abortion bans on the books that predated Roe.
There are dozen+ abortion-related lawsuits currently one step away from Supreme Court review, including state bans on surgical abortion methods and bans based on certain reasons for terminating a pregnancy, such as a fetal abnormality.
The Biden administration is committed to codifying Roe v. Wade, regardless of any SCOTUS outcome, with White House press secretary Jen Psaki noting that “the right to health care, the right to choose, have been under withering and extreme attack, including through draconian state laws.”
Making access to abortion the law of land can’t be done by executive order, so the question remains whether any legislation in this area would stand a chance in congress. Right now I’d say the answer is no. It may even be dicey if the filibuster is eliminated.
As is true with many issues facing the country, the legislative branch’s priorities aren’t reflective of public opinion. People have a more nuanced view on the topic than the pundit class, which would have us divided into “yes” or “no” categories.
From CNN:
In the midst of a global pandemic, a heightened focus on race relations and a struggling economy, fewer than 1% of Americans named abortion as the nation's most important problem, according to a Gallup poll last month. Respondents are far likelier to cite the pandemic, immigration issues, race relations or general concerns about the government, but that could potentially change if the Supreme Court's ruling lands during the 2022 midterm elections, especially if candidates end up making it a focal point of their campaigns.
A majority -- 59% -- of Americans say abortion should be legal in all or most cases, according to one April survey by Pew Research Center, compared with 39% who say it should be illegal in most or all cases. Those top-line numbers, the poll found, haven't changed much in recent years -- surveys conducted as far back as 1995 found similar results.
Of course overturning Roe v. Wade won't end abortion in America. The poor and middle class will die in back-alley procedures while the wealthy will do what they did prior to 1973. They'll hop the first plane out to a locale that recognizes a woman's right to choose.
If you have already figured it out, the medical procedure at the heart of this legal battle isn’t really at stake. Ending legal abortions is just one step toward creating a society where access to birth control is denied. And there’s always racism embedded in right wing politics.
The Supreme Court’s 1965 Griswold v. Connecticut ruling gave married couples the right to use birth control, ruling that it was protected in the Constitution as a right to privacy. Griswold was one of the precedents cited in Roe v. Wade.
Pharmaceutical birth control methods and the IUD are more generally being called abortifacient, and lumped in as another form of ending life prematurely.
A frontal assault on women’s contraception has long been considered a political loser. But when the ambiguity over when life begins is defined as when fertilization occurs, it’s a new ballgame.
The anti contraception movement secured a victory in this area with the Supreme Court Hobby Lobby decision, eliminating the ACA’s provision about private health plans covering contraceptive services, counseling and methods without out-of-pocket costs.
Until fertility control came along, anatomy largely determined destiny — and all of the world’s ‘advanced’ societies were organized around that central fact. Women were born to bear children; they had no other life options. They were tied to the home, dependent on men, and subject to all kinds of religious and cultural restrictions designed to guarantee that they bore the right kids to the right man at the right time — even if that meant effectively jailing them.
In the span of just a few short decades in the middle of the 20th century, all of that suddenly ended. Medical advances made fertility a conscious choice for an ever-growing number of the planet’s females. And that, in turn, changed everything else.
Regret and anger over the loss of this ancient bargain, along with the undermining of male authority in modern industrial economies, have turned control of women’s bodies into a symbolic battlefield. Look deep enough and you’ll find this struggle at the heart of emergent flavors of fundamentalism worldwide.
The perceived loss of power and control of both men and women who fear this societal reordering amounts to a kind of personal annihilation, a loss of gender identity so deep that they are literally interpreting it as the end of the world. Hence QAnon, MAGA, etcetera, etcetera.
Contraception is the mere blink of an eye in historical terms. The clock, whether reactionaries like it or not, won’t be turned back. Advances in technologies are also fomenting changes in the social order. And the pandemic --stories about lazy job seekers aside-- has brought on a shift in perceptions and attitudes that’s still to be defined.
The patriarchy has not been overthrown, but its foundations are slowly rotting away. Change is hard, and it can be painful. The nature of a path forward, however, hasn’t changed. Hard work, dedication and persistence will determine final outcomes.
You don’t have to look very hard to find the rotten core of racism buried in the history of the anti-abortion movement’s connection with politicized evangelicals.
From Politico:
In fact, it wasn’t until 1979—a full six years after Roe—that evangelical leaders, at the behest of conservative activist Paul Weyrich, seized on abortion not for moral reasons, but as a rallying-cry to deny President Jimmy Carter a second term. Why? Because the anti-abortion crusade was more palatable than the religious right’s real motive: protecting segregated schools.
I suspect the Supreme Court will take the State of Mississippi up on its invitation to ban abortions. There will be anger and people will take to the streets to express their displeasure.
Let’s not forget that an infrastructure for substantive change emerged following the Former Guy’s election in 2016, threats to the ACA, and the open xenophobia/racism of the recent past.
For the moment, many activists are focused on trying to stem the assault on voting rights. Regardless of how that struggle turns out, a strategic understanding of the need to bury the GOP in 2022 is required.
I’m not just talking about state and federal legislators; every position down to dog catcher must be challenged.
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Email me at WritetoDougPorter@Gmail.com