Women’s reproductive rights are now in the cross-hairs of the Forced Birthers, and Roe v. Wade is threatened by the Trump administration. Empowered by Trump, Ohio legislature passes ‘heartbeat’ bill that would ban most abortions:
If Gov. John Kasich (R) signs the bill, it would pose a direct challenge to Supreme Court decisions that have found that women have a constitutional right to abortion until the point of viability, which is typically pegged around 24 weeks. Similar bills have been blocked by the courts. Because of this, even many antiabortion advocates have opposed such measures.
But some Ohio Republicans said they were empowered to support the bill because of President-elect Donald Trump’s pledge to appoint Supreme Court justices who would overturn Roe v. Wade, the 1973 high court decision that legalized abortion nationally.
There is one vacancy on the Supreme Court, left by Antonin Scalia, a conservative justice who died this year. Another conservative justice in his place would not likely change the dynamics of the court enough to alter the chances for such a bill. But that could change if Trump gets the opportunity during his term to appoint a replacement for one of the more liberal justices.
The vote is the latest sign that Trump’s election has energized conservatives on cultural matters, even as his campaign was built around an economic message. Social conservatives were heartened by his choice for vice president, Indiana Gov. Mike Pence (R), who shepherded some of the nation’s strictest abortion laws in his state. They have watched approvingly as his cabinet picks have almost uniformly been outspoken against abortion rights.
Previous attempts to ban abortion at such an early point in pregnancy have been unsuccessful. The Supreme Court earlier this year declined to revisit lower court decisions blocking a six-week abortion ban passed in North Dakota and a 12-week abortion ban in Arkansas. Other states have considered such measures but shelved them because of concerns from antiabortion advocates that they would be found unconstitutional, further cementing the right to terminate a pregnancy.
* * *
Abortion rights groups immediately condemned the measure, including how it was passed: as a last-minute amendment to an unrelated bill. They said it contains no exceptions for rape or incest. And they noted that the Ohio legislature is set to vote on another abortion restriction, one that would ban the procedure at 20 weeks of pregnancy.
“Make no mistake — these bills punish women,” Dawn Laguens, executive vice president of Planned Parenthood Action Fund, said in a statement. “We call on Governor John Kasich to veto these unconstitutional abortion bans.”
Paul Waldman of the Washington Post writes, Roe v. Wade may be doomed. Dark days are ahead for reproductive rights.
The Supreme Court was something of an under-the-radar issue in the 2016 campaign, extremely important to some groups (especially white evangelicals), but not discussed all that much on a national level. But now that Donald Trump has been elected, and with the success of the GOP’s only-Republican-presidents-are-allowed-to-fill-vacancies strategy, it will be of tremendous importance to the country’s future.
That question is coming up again in the wake of the Ohio legislature’s shocking decision to pass a ban on abortions once a fetal heartbeat can be detected, which is usually about six weeks into a pregnancy, before many women even know they’re pregnant. Under current jurisprudence, this ban is almost certainly unconstitutional. But maybe by the time it reaches the Supreme Court, it won’t be.
If you listen to some pro-choice activists, Roe is still safe, for now. As Julie Rikelman of the Center for Reproductive Rights recently told New York magazine, “We definitely need to be concerned, but we do not believe that Roe v. Wade would be overturned at this point in time.” The idea is that not only are the justices reluctant to overturn the Court’s precedents, but they’re also attuned to public opinion and political reality, and understand what upheaval would result if they overturned Roe. Ruth Bader Ginsburg said as much in an interview last year: “This court is highly precedent bound. And it could happen, but I think it’s not a likely scenario.”
I suspect that pro-choice groups may be taking that line in part to persuade the justices of just that argument. Unfortunately, it’s much more likely that by the time we get to the end of Donald Trump’s term, Roe will be history.
Here’s where we stand right now. There are five votes to maintain Roe: the liberals Ginsburg, Sonia Sotomayor, Elena Kagan, and Stephen Breyer, and the swing voter Anthony Kennedy. There are two iron-clad votes to overturn Roe: Clarence Thomas and Samuel Alito. Donald Trump has made it clear he’ll be appointing a “pro-life” justice, and there’s simply no way conservatives would let him get away with naming someone to fill Antonin Scalia’s seat who wasn’t guaranteed to vote against Roe.
That’s three votes against Roe. Now let’s imagine that at some point in the next four years, Ginsburg (age 83), Breyer (78) or Kennedy (80) leaves the Court. Their replacement would also be all but guaranteed to be a vote to overturn Roe. That’s four. Which means it all comes down to John Roberts.
No one knows for sure how he’d rule. On one hand, Roberts is extremely well-attuned to the politics of the moment and reluctant to issue rulings that would cause political chaos and undermine the authority and legitimacy of the Court. He is surely well aware that in polls the idea of overturning the decision is usually opposed by at least 60 percent of the public and sometimes more.
On the other hand, Roberts was nurtured in the Reagan Justice Department, where he participated in many efforts to restrict abortion rights. While he made all the right noises about Roe being settled precedent during his confirmation hearings in 2005 (as every conservative justice does), he has never joined the pro-choice side of a decision before the High Court. Earlier this year, he dissented in a case that struck down a set of absurd restrictions Texas had placed on abortion clinics, a classic “TRAP law” (Targeted Regulation of Abortion Providers), in which the state places regulatory demands that are all but impossible to satisfy on abortion clinics as a way of driving them out of business.
That Texas law was so ridiculous that if you believed it was constitutional — as Roberts, Thomas, and Alito did — then there’s essentially no restriction on abortion rights you’d find unduly burdensome. Which suggests that Roberts will be perfectly ready to discard Roe if he gets the chance.
But that case also suggests something else: the conservatives on the Court, joined by their new colleagues (if Trump gets one more appointment) could effectively overturn Roe without actually overturning Roe. They could claim that Roe still stands while gutting the standard set out in Planned Parenthood v. Casey, which said that states can’t place an “undue burden” on a woman’s right to choose. They could say that “heartbeat” bans like Ohio’s are fine, as are TRAP laws that make it impossible to open an abortion clinic, as are lengthy waiting periods or requirements that doctors lie to their patients and tell them that if they have an abortion they’ll go mad and die from cancer. With five anti-abortion votes, they could create the functional equivalent of a world without Roe, where abortion is all but illegal in states controlled by Republicans but legal in states controlled by Democrats.
A woman either has a constitutional right of privacy to make reproductive health care decisions for herself, or she does not. Constitutional rights are never dependent upon which political party controls a particular state government. If a woman does not have a constitutional right of privacy to make reproductive health care decisions for herself, then she is in effect a second-class citizen, the property of the state which possesses the power to impose upon her the most intimate and personal health care decisions without her consent.