Rosemary Westwood is a New Orleans-based journalist
Last year, when I wanted to visit an abortion clinic in Louisiana, I first had to meet the administrator for coffee. She was, essentially, sussing me out. Clinics in the South are deeply protective of their privacy and their patients. I was sussing her out, too. How did she feel about the state of abortion rights in Louisiana, where only three clinics are operating, down from 11 in 2001? What did she make of Justice Brett Kavanaugh’s contentious ascendance to the U.S. Supreme Court? She told me she could hear the “death rattle” of abortion rights. Later, I heard her staff joke, darkly, of an “abortion apocalypse.”
They – and others who’ve been fighting anti-abortion laws in conservative states for years – are not surprised by recent events in the United States. Really, no one should be.
The “heartbeat” abortion bans enacted in six states and counting (the laws ban abortion at about six weeks, when the pulsing of a cluster of embryonic cells that later form a heart can first be detected), an eight-week ban in Missouri, and Alabama’s outright abortion ban (the only exception is if a woman is likely to die or risks serious bodily harm) are by far the most severe abortion laws in the United States in recent decades. They’re also in line with both the trajectory of the anti-abortion movement’s fight and its core beliefs. They are, essentially, the legislative equivalent of a long-held ideology: that zygotes, embryos and fetuses are people.
What is exceptional is that the laws clearly contradict decades of Supreme Court precedent, and that is the point.
They are aimed at Roe v. Wade, the 1973 decision that established the constitutional right to abortion, and its descendants (Planned Parenthood v. Casey in 1992 and Whole Woman’s Health v. Hellerstedt in 2016). None of them will take immediate effect, since all have or will be challenged by lawsuits.
What matters is the outcome of those cases. The laws are the clearest legislative indication yet that conservatives believe their new appointments to the Supreme Court are poised to hand them a long-wished-for victory. That Roe is toast.
The Democratic Party has erupted in outrage and alarm – outrage on a scale not previously seen while anti-abortion laws advanced over decades, alarm that was largely absent until the arrival of President Donald Trump.
“Momentum is clearly on the side of life," Marjorie Dannenfelser, president of the prominent anti-abortion group the Susan B. Anthony List, said in a statement after a Missouri bill passed. Another group, Pro-Life Action League, tweeted, “The days of #RoeVWade are numbered.”
Mr. Trump is one major reason. The President aggressively campaigned on appointing justices who would overturn Roe (“that will happen automatically,” he said in 2016). He’d barely arrived in the White House before he put Justice Neil Gorsuch on the bench. But replacing Justice Anthony Kennedy last year with Brett Kavanaugh was especially crucial – Justice Kennedy, a conservative, twice voted to uphold abortion rights, including as the pivotal vote just three years ago in the Whole Woman’s Health case.
While Mr. Trump banged this particular drum the loudest, appointing anti-abortion judges has been a Republican priority since Ronald Reagan, as Supreme Court observer Linda Greenhouse recently noted in The New York Times, and the effort extends across the entire federal bench. Thus, lower courts have entertained numerous state attacks on abortion, and “a majority of the Fifth Circuit is at war with the Supreme Court’s abortion precedent – and was, even before the Trump administration filled five vacancies on the 16-judge appeals court,” she wrote.
There was no such attention on the other side. While conservative states built a network of abortion hurdles, liberal ones have, for decades, done little. In an analysis of state policy, the pro-choice research non-profit the Guttmacher Institute deems 21 states “hostile” to “very hostile” toward abortion and only four “supportive” or “very supportive.” Twenty-five are simply “middle ground.” Nor have Democratic politics obsessed over Supreme Court appointments the way Republican circles have – one could hardly imagine a swath of Hillary Clinton voters telling reporters they voted for her because of the Supreme Court, but that’s what Trump voters did.
With the writing on the wall, all this is changing. Protests against abortion bans swept the United States last week in a national day of action. Democratic states have pushed reproductive-rights bills of their own in 2019 and pro-choice groups argue the 2018 midterm elections – which sent a wave of pro-choice Democrats to the U.S. House of Representatives – prove their voters have been galvanized.
Liberal groups are attacking Republicans over questions raised by the many laws: Could women be punished for abortion? For laws that protect a woman’s life – what exactly counts as a serious-enough threat? What is the personhood of an IVF treatment? Alabama Senator Clyde Chambliss told his critics his state’s ban doesn’t apply to IVF. “The egg in the lab doesn’t apply. It’s not a woman. She’s not pregnant.”
Some are now questioning whether attempting to topple Roe is good politics for Republicans ahead of the next presidential election. A recent poll found Georgians are split over their support for the “heartbeat” ban and 70 per cent do not think Roe should be overturned. A Fox News political analyst warned last week the extreme bans “will help the Democrats in 2020," especially in key suburban districts. Mr. Trump himself was conspicuously silent for weeks as the bans sped through state legislatures. Only last weekend, days after Alabama’s Governor signed the new law, did he take to Twitter, and the message was subdued.
“We have come very far in the last two years with 105 wonderful new Federal Judges (many more to come), two great new Supreme Court Justices, the Mexico City Policy, and a whole new & positive attitude about the Right to Life,” Mr. Trump tweeted. Arguably the most consistent action of this unpredictable President has been his full-throttled effort to please religious conservatives by targeting abortion rights, including putting anti-abortion judges across federal benches and reinstating the Mexico City policy banning U.S. overseas funding from pro-choice groups.
“We must stick together and Win for Life in 2020,” Mr. Trump went on, warning that “if we are foolish and do not stay UNITED as one, all of our hard fought gains for Life can, and will, rapidly disappear!” – presumably by Mr. Trump losing the election. But another part of his tweet revealed a key weakness in that unity. Mr. Trump proclaimed himself “strongly Pro-Life” with exceptions for rape, incest, and risks to a woman’s life – a statement that drew backlash from anti-abortion activists, one of whom captured the mainstream pro-life view when she tweeted that “a baby of rape is innocent & doesn’t deserve the death penalty for her father’s evil crimes.”
Meanwhile, a previously unreleased 2018 poll found that even in Alabama, 65 per cent of respondents think rape and incest victims should be able to get abortions.
How the Supreme Court will react to these political convulsions remains unclear. The justices are already considering whether to hear a handful of abortion cases that do not directly challenge Roe the way these new laws have. The New Yorker’s Jeffrey Toobin and Slate’s Mark Joseph Stern argue conservative justices have already shown their willingness to disregard precedents they don’t like (in a recent dissent, liberal Justice Stephen Breyer warned the court’s decision “can only cause one to wonder which cases the Court will overrule next”).
Others expect Chief Justice John Roberts – a conservative who prizes the court’s reputation and its legitimacy – will preside over a continued chipping away at abortion rights, rather than their outright demise.
For pro-choice Americans, that is the current best-case scenario, and there is only one way to change it. The 2020 elections will be, in part, a referendum on abortion in America, a singular moment for the country to choose its fate after 46 years of bitter discord. There is only one way to ensure abortion access, for those who’d choose to: they need to take back the U.S. Senate, the White House and, ultimately, the Supreme Court.