An abortion update

As expected, the Supreme Court is set to hear an abortion case from Mississippi that could wind up overturning the 1973 Roe v. Wade decision. Anti-abortion states have been passing laws for years that cut back on abortion rights, but are intended to kill of Roe once and for all. Those laws are constantly being challenged in the courts, which is what the people who wrote the laws want. They all want to be the authors of the case that finally kills off Roe. The current case presents the court with an intermediate scenario that would require the court to (1) reverse its rule that abortions before fetus viability outside the womb are constitutional, (2) completely overturn Roe, or (3) reject the state law and leave things as they are for now. 

Option 1 would greatly limit abortions. Option two would either leave abortion law to the states, or outlaw most or all abortions in all states. The former is probably more likely than the latter.

Given that there now are six radical Christian nationalist judges on the court, all of whom were put there specifically to overturn Roe as their highest priority, this feels like the case that will probably see the demise of Roe, but opinions on that differ (see below). The New York Times writes: 

A major confrontation on the abortion battlefield looms this fall, when the Supreme Court is expected to hear arguments on whether Mississippi can ban abortion after 15 weeks. That’s roughly nine weeks before viability, the point at which states are now allowed to forbid abortion. To uphold Mississippi’s law, the court would have to eliminate its own viability rule or reverse Roe v. Wade altogether.

Given the composition of the court, there is a real chance the justices may overthrow Roe. But there is also the possibility that the court, for institutional or political reasons, may not yet want to upend that 1973 decision, which found the Constitution protects a woman’s right to have an abortion without undue government interference.

What then? A recent ruling by the United States Court of Appeals for the Fifth Circuit seems tailor made for a Supreme Court that wants to look as if it cares about precedent while shooting a hole through that right. The appellate court relied on a past Supreme Court ruling to give leeway to the Texas Legislature to restrict a certain abortion procedure even though there was uncertainty about the medical consequences of the stricture.  

Texas is one of several states that functionally ban dilation and evacuation, the safest and most common abortion procedure used in the second trimester. In performing the procedure, a doctor dilates the cervix and then removes a fetus using forceps and possibly suction.

The NYT goes on to point out that the abortion-restricting law in Texas could be a pathway for states to get rid of Roe without overturning it.[1] That would leave a fig leaf of plausible deniability for the Christian nationalists on the court to falsely claim they are not political partisans. That Texas law is bubbling up and it might be the one the Supreme Court eventually chooses to uphold. By doing so, there would be a path to eliminate legal abortions without overturning Roe. The states could regulate legal abortions into non-existence but point to a meaningless Roe decision as being still valid law. That is a cynical political argument. However, the anti-abortion crowd does not care about cynical tactics. They care only about getting rid of abortions.

If the court chooses option 2 and leave abortion law to the states, women with the means to travel out of state to get an abortion will routinely do so. If the court decided to make abortion illegal everywhere, then women with the means to travel out of the country to get an abortion will routinely do so. If states makes it illegal travel to get an abortion, then depending on the penalty states decide to impose, life for those women could get complicated and/or dangerous. 

Questions: Should the Supreme Court overturn Roe and make abortions illegal in all states, or leave it to the states to make what laws they want? Is the Supreme Court mostly politically partisan or not, at least on politicized issues such as abortion, gun control, civil liberties and voting rights?

Footnote: 

1. The NYT writes on the implications of the Texas law: 

The Fifth Circuit decision, should it end up before the Supreme Court, offers an escape hatch for justices who might think it is prudent to take their time dismantling abortion rights.

The court’s institutionalists, led by Chief Justice John Roberts, do not want to crush respect for the federal judiciary. Honoring precedent makes the justices look more like jurists than partisans. And politically, overruling Roe also presents unique challenges.

Most Americans pay no attention to much of what the Supreme Court does, but abortion is different. A decision reversing Roe could energize abortion rights supporters to vote in 2022 and 2024 and also advance the cause of court reform. All of that means that the court’s conservative majority might hesitate to get rid of Roe quickly, especially without paying lip service to precedent.

That is the genius of the Texas strategy. There seems to be no trade-off between relying on precedent and gradually eliminating abortion rights. The message of the Fifth Circuit decision was clear: The court’s conservatives can have it all.

The court can pretend as hard as it can that it is not partisan political. That is just not true.