As we are once again forced to confront the question of whether Roe v. Wade will be overturned and abortion made illegal in at least parts of the United States, Republicans are telling us not to get so worked up. Sure, it’s what they’ve sought for decades, and it’s what Donald Trump promised when he ran for president. But who knows what the new Supreme Court will do? They might just keep it in place — stare decisis and all, you know.
And even if it is overturned, that doesn’t mean abortion will be illegal; it’ll be illegal only in places where Republicans are in charge. You blue-staters will still be able to get all the abortions you want.
As for the first part, there’s absolutely no reason to think that’s true. And as for the second part, it’s entirely possible that once they know the Supreme Court won’t strike it down, Republicans in Congress will pass a law outlawing abortions nationwide.
You might say that they wouldn’t be dumb enough to outlaw abortion when two-thirds of the public thinks it should be legal. But let’s look at how this could go down.
Despite whatever vague hand-waving they may have done during their confirmation hearings, there’s no one who seriously believes that any of the four current conservative justices wouldn’t prefer to see Roe gone — or who thinks that Brett M. Kavanaugh, a lifetime legal conservative, doesn’t feel the same way. But the truth is that they don’t even have to completely repeal Roe to create the same effect.
Let me refer you to a 2016 case on Texas’s TRAP (targeted regulation of abortion providers) law, which, like its kin in other states, set out a series of restrictions applying only to abortion providers that are almost impossible to meet, thereby rendering abortion all but illegal. The case, decided when the Supreme Court had only eight members because the Republicans refused to allow President Barack Obama to fill a vacancy, came out 5 to 3, with Anthony M. Kennedy joining the court’s four liberals in striking down the law. John G. Roberts Jr., who will now be the court’s median justice, sided with Clarence Thomas and Samuel A. Alito Jr. in saying that the TRAP law did not create an “undue burden” on women’s right to obtain an abortion.
That undue-burden standard, which comes from Planned Parenthood v. Casey, the 1992 case that upheld Roe, means that states can restrict abortion rights only if they don’t go so far as to create an undue burden on women. But what counts as “undue”? That’s up to the courts to decide in each case.
I’d argue that many of the restrictions Republican states have passed, including things such as extended waiting periods, forced ultrasounds, and requiring abortion clinics to lie to their patients about the horrors that will supposedly befall them if they have abortions, create an undue burden. But all those have been allowed as being not particularly undue.
So with a court soon to be controlled by five justices opposed to abortion rights, it’s likely that some Republican state will pass a new TRAP law requiring that every abortion clinic be located on top of a mountain of no less than 10,000 feet and be staffed at all times by 24 doctors whose names begin with the letter X. Then the court will rule that the burden that creates on women’s right to an abortion is, while substantial, intended only to guarantee their health and therefore not undue.
After that ruling, every other Republican state will pass their own TRAP laws making abortions impossible to obtain. That would bring us to the red-state/blue-state divide, which exists now to a great extent; there are already six states with only a single abortion clinic.
Or the court could decide that abortion can still be legal, but not once a fetal heartbeat can be detected, because at that point, they’d say, the fetus achieves “personhood” and is protected by the 14th Amendment. Many women don’t even realize they’re pregnant at that stage (it happens around six weeks), but too bad. The Ohio legislature passed a bill in 2016 banning abortions if there’s a heartbeat present. It’s obviously unconstitutional — for now.
But what if Republicans wanted to be even more ambitious? If they manage to hold on to both houses of Congress in November, they could well decide that this could be the last chance they’ll have to outlaw abortion nationally for some time to come. So if the court did indeed overturn Roe v. Wade, Congress could pass a law outlawing abortions completely, or outlawing them after some short period of time. If the court didn’t overturn Roe but did uphold a super-restrictive TRAP law, Congress could just pass a national version of it. You may not recall, but in October the House passed a bill outlawing abortion after 20 weeks of pregnancy. It got 51 votes in the Senate, not enough to overcome a filibuster.
In order to pass that in the future, they’d have to get rid of the legislative filibuster, something they’ve refused to do up until now, because of the fear of what would happen once Democrats gained control. But the urgency might just be enough to persuade them to do it.
I’m not saying that that last outcome is more likely than not; it involves lots of variables, and at this point we just can’t say for sure what Republicans will do. But we should prepare ourselves, because a national ban on abortion, either complete or de facto, could well be in our near future.