Tuesday, July 10, 2018


Scott Lemieux thinks the Supreme Court will effectively kill Roe v. Wade, but possibly not overturn it, at least at first.
It is true, as far as it goes, that Chief Justice John Roberts’ court is unlikely to overturn the Roe v. Wade ruling before the 2020 elections. But the Supreme Court can nonetheless allow states to effectively ban abortion without explicitly overruling Roe. Many states have already successfully experimented with regulations that target abortion clinics, making it difficult or impossible from them to operate. Six states have only one remaining abortion clinic in part because of the oppressive regulatory framework.

In its 2016 decision in Whole Woman’s Health, the Supreme Court struck down a particularly harsh Texas law that would have required a majority of the state’s abortion clinics to close although there was no reason to believe that any of them were unsafe. It is virtually certain that the post-Kennedy court would have upheld the same law or even a more draconian version. And whether the opinion makes it explicit or not, this would be the de facto end of Roe v. Wade....

The slow strangling of Roe v. Wade could be a win-win for Republicans: a woman’s right to obtain an abortion essentially eliminated in many states, while Roe theoretically remains good law.
Slate's Mark Joseph Stern imagines a similar scenario:
And that is how the Supreme Court will, in all probability, kill off Roe. A conservative state will pass a draconian anti-abortion restriction—one that shutters all abortion clinics, perhaps, or outlaws abortion after a fetal “heartbeat” is detected. With Kavanaugh providing the decisive fifth vote, the court will rule that the state law does not pose an “undue burden” to abortion access; after all, the government has an interest in “favoring fetal life,” and women who truly want an abortion can go to another state. The majority may not admit what it is doing. But in practice, it will be overturning Roe.

[Brett] Kavanaugh is the ideal candidate to cast that fifth vote and even write the opinion. He has already proved that he can pretend to adhere to Roe while hollowing out its core holding.
The religious right will cheer this decision, but abortion will still be legal in solidly blue states. Will the fundamentalists declare victory and go home? I don't see it. They'll redirect their energy toward the states, especially swing states in the Rust Belt where power regularly shifts from Democrats to Republicans and back again. In Michigan, Wisconsin, Pennsylvania, and Ohio, abortion might be legal for four or eight years at a time and then illegal in subsequent administrations. Abortion might be the #1 issue in state campaigns for years to come.

But meanwhile, the religious right will continue to pursue a nationwide ban on abortion. Will the Republican Party want to fight for that, especially if the effective end of Roe has enraged not just liberals voters but many moderates?

I don't think the GOP will be able to jettison the anti-abortion absolutists -- Donald Trump needed them in order to win, and that will be true for future Republicans. But by then it will obvious what it means to ally with these people -- abortion effectively illegal in nearly half the states and under threat everywhere else. Is that when being anti-abortion will finally become a national liability for the GOP? Or will it be like the GOP stance on guns -- it leads to an outcome much of America hates, but it's not enough to inspire revulsion against the party?

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