Abortion rights on the brink
President Trump promised to use his Supreme Court picks to kill Roe v. Wade. So far, he’s keeping his word.
Perhaps it’s always like this with cultural tsunamis. Things move along at a predictable pace, with battle lines shifting as one side gains momentum and then another, year after year — until suddenly everything changes. Isn’t that how it felt in 2015, no matter where you stood on the issue of gay marriage? After nearly 20 years of fighting, suddenly the pieces fell into place and what had seemed preposterous a decade before became all but inevitable. The Supreme
Court ruled, and right away gay rights — even the right to be married — were taken as a legal necessity.
The fighting hasn’t stopped, and perhaps never will. But the disputes have moved to the margins, where wayward county clerks and offended florists fight a rear-guard retreat.
We’re seeing something similar this spring as
America experiences another seismic shift, this time over abortion. The stakes are far higher than in the gay rights debate. Despite gay-marriage opponents’ preposterous hand wringing over the end of Western Civilization, that fight was about legal recognition of intimate relationships, about a piece of paper and the dignity that goes with it.
Essential things, of course, but the abortion debate involves questions of life and death. Except for slavery, our nation has never fought over such a high-stakes issue. The abortion debate pits the future lives of unborn children against the right of already living women to control their own bodies — the most important possession any of us ever have.
No surprise, then, that we’ve been fighting over the limits of abortion rights ever since the Supreme Court
ruled nearly 50 years ago that the Constitution’s right to privacy means pregnant women can decide whether to remain so.
That war has taken dramatic turns recently. Like the Supreme Court’s gay-marriage decision, this shift seems sudden despite all the reasons it shouldn’t.
This year, at least eight states passed laws that would vastly curtail the right to abortion. Those new laws are so strict that, if upheld by the courts, Roe v. Wade will either be gutted or overturned. In many states the right to abortion will be meaningless. Alabama’s new law effectively outlaws all abortions, with the slimmest of exceptions — and includes prison terms of up to 99 years for doctors who perform them. Georgia, Kentucky, Missouri, Mississippi and Ohio all have passed laws that outlaw ending a pregnancy once a doctor can hear a fetal heartbeat, which usually happens at six to eight weeks. Many pregnant women learn of their pregnancy either just before, or just after, that deadline.
A similar heart-beat law was considered in Austin this session, but lawmakers wisely let it die. But Texas joined many other states in passing other restrictions. None of the laws have taken effect yet, but there is no reason to conclude anything other than a hostile reception in the federal courts will prevent them from codifying a new reality by Christmas. It’s tempting to see these laws as just a new round of testing the limits of Roe v. Wade. But that’s a mistake. They are the vanguard of a movement that has finally put itself within striking distance of unraveling abortion rights altogether.
It’s true, of course, that Republican-dominated legislatures have prodded the limits of Roe v. Wade ever since the decision came down in 1973. The most serious threat came after Pennsylvania passed its abortion control law in 1982. When abortion clinics sued, they set up what looked like a slam-dunk opportunity for abortion foes to see Roe overturned. By the time the case reached the Supreme Court, eight of its nine justices were Republican appointees. The sole product of a Democratic president was Byron White — and he had voted against Roe nearly two decades before.
When hundreds of thousands gathered in Washington in April 1992 for what was then the largest pro-choice rally in history, the mood was somber. I remember it well. I was in college studying political science when I decided to ride shotgun with my favorite professor’s graduate assistant to see protest politics in person.
I left with two lifelong impressions: Among the marchers there had been something I’d never encountered before: a kind of sisterhood that emanated from a profound sense of generosity toward one another, something I’d witness a few years later at the Million Man March. The other was the pronounced feeling they were facing imminent defeat. Few seemed confident that abortions would be legal that time next year.
Days after the march, a divided Supreme Court surprised nearly everyone with its ruling in Planned Parenthood v. Casey. What arose out of a mess of conflicting opinions was a bare-majority support for Roe’s central holding: Women have the right early in pregnancy to decide whether to remain pregnant or not.
Beyond that simple holding, the justices were hard-pressed to agree on much else. But the court did change the rules. Going forward, the test for whether a state had violated the right to abortion would no longer have anything to do with trimesters. Instead, states could regulate abortion at any point after the fetus was viable — largely understood then to be around 22 weeks — and before that, could impose restrictions only if they did not place an undue burden on a woman seeking an abortion.
Naturally, what followed was a stream of state restrictions aimed at testing the meaning of “undue burden.” These restrictions tended to cut away at abortion rights, but did not seek to eliminate them.
This approach culminated in 2016’s Whole Women’s Health v. Hellerstedt, a case out of Texas. By then many states had been reduced to just two or three — and in some cases just one — abortion provider, thanks to ever-tightening rules. But opponents wanted to go further. In Texas, lawmakers here had passed two laws that, under the guise of boosting medical standards for clinics and abortion doctors, made abortions much more difficult to obtain. In a major victory for abortion rights, the Supreme Court saw through the ruse and ruled 5-3 that the restrictions offered “few if any” medical benefits and imposed an “undue burden.”
Finally, pro-choice advocates exclaimed, the right to choose appeared to be here to stay.
That case came down in June 2016. Four months later, Donald Trump happened, and everything changed. Trump had campaigned that he’d appoint justices to overturn Judging by the two men he’s placed on the bench, it’s a promise he’s kept.
Things didn’t really change, however, until Judge Brett Kavanaugh was confirmed. By replacing Justice Anthony Kennedy, the court’s swing vote on abortion as late as 2016, Kavanaugh was in a position to drastically alter the court’s posture. Will he really vote to overturn Roe? It’s impossible to say, but little in his long record suggests he won’t.
Kavanaugh, for instance, has often praised the late Chief Justice William Rehnquist, who dissented in Roe and again in Planned Parenthood, writing in 1992 that Roe should be overturned.
In Kavanaugh’s confirmation hearings, senators asked him dozens of times about his stance on abortion. He didn’t tip his hand. Many voices seeking to minimize the threat his nomination posed to Roe noted that as a judge he had issued opinions consistent with Roe, and had stated that it was settled law.
This was significantly misleading. As even Kavanaugh readily conceded, lower-court judges have no choice but to follow precedents such as Roe and Planned Parenthood v. Casey. But as a justice, the only thing holding him back will be his respect for the precedent set by those two earlier cases.
How much value he’ll place on that precedent is impossible to say for sure. But lawmakers in Alabama and the other states are clearly hoping the answer is very little.
The author of the Alabama bill has admitted as much, and even the governor who signed it into law said it’s probably unconstitutional. They hope the challenges — the ACLU filed suit Friday — will give the justices a chance to reinterpret the Constitution and let states like his make abortion a crime.
Thanks to Trump’s success in naming Kavanaugh to the bench, they sense victory.
Such expectations have been upset before. The court’s 1992 decision, by the narrowest of margins, to uphold Roe, is the best example. And Chief Justice John Roberts may well prove reluctant to create the enormous upheaval in the social order that overturning Roe would trigger.
Whatever bets you’re willing to make about how the court will come down, this much is true: The long-running war over abortion took a tremendous turn this spring. Not in a generation has it looks so likely that abortion rights will be either gutted or eliminated altogether. That probably feels sudden, but of course it’s not. It’s exactly what Trump promised. .
For women, and for everyone, it’s time to strap in. It’s going to get bumpy.