During the confirmation fight for Justice Brett M. Kavanaugh, abortion rights activists warned that with his ascension to the Supreme Court, abortions would be criminalized, putting at risk the health and lives of thousands of women who, like their grandmothers’ generation, would be forced to resort to back-alley abortions if they did not have the means to travel hundreds or thousands of miles to a state where abortion was legal.
Kavanaugh’s defenders called such claims hysterical and disingenuous. Although Kavanaugh was put on a list blessed by pro-life groups and had questioned the jurisprudence behind Roe v. Wade, his defenders argued that he wouldn’t approve state laws that went so far as to ban abortion. On the other side, women’s groups pointed to pro-lifers’ decades-long commitment to ending legal abortions based on equating any abortion with murder.
Sen. Susan Collins (R-Maine) risked her decades-long reputation as a pro-choice Republican and her prospects for reelection in 2020 by voting to confirm Kavanaugh and spouting the pro-lifers’ line that legal abortion wasn’t really at risk.
Collins, of course, was played. In a Louisiana case earlier this year, Chief Justice John G. Roberts Jr. was the fifth vote to block a bill that would have restricted abortions. Kavanaugh, despite all those promises about not really upsetting Roe, was one of the four in dissent.
We now are seeing the full impact of confirming a justice who could eviscerate Roe. The very type of legislation Kavanaugh defenders claimed were not in the cards was passed in Georgia and is poised to pass in Alabama. State lawmakers are now emboldened to pass laws effectively outlawing abortion with the hope that this Supreme Court will now uphold them.
The Georgia law will ban abortions after a doctor is able to detect “a fetal heartbeat in the womb,” usually at about six weeks, before many women know they are pregnant. It was one of the nation’s most stringent proposals until the all-out ban introduced in Alabama.
Under the proposed Alabama bill, doctors would not be able to perform the procedure once a fetus is “in utero.” That version caught national attention because the bill that passed in the House allowed for a single exception, in cases involving a serious health risk “to the unborn child’s mother.” Cases of rape and incest were not exempt as they are in other states.
Just when Republicans were gaining advantage on the issue, falsely accusing Democrats of favoring infanticide, they’ve now handed Democrats the high ground. Republicans want to jail women. Republicans want to force rape victims to go through a full pregnancy. That will be a powerful issue in 2020 in some jurisdictions, exacerbating the already widening gender gap.
These laws (if the Alabama bill passes) will likely make their way up the appeals courts to the Supreme Court. Given the gravity of the issue and the conflict with precedent and governing law in other circuits, the court would almost certainly be compelled to take up the issue. And then?
We might see Roberts once again side with Roe precedent and avoid putting the court’s credibility at risk. If Roberts, along with Trump’s two appointees, sided with the states, however, the Supreme Court’s decision would set off a political firestorm. The potential to ban abortion in many states (or even more radically, for the entire country if Congress decides to act) would elevate abortion to a top-tier issue.
Republicans would be forced to wrestle with the results of their absolutist position and the backlash from women who have never lived in a country where safe and legal abortions were not available. The political damage to the GOP (outside deep-red states) could be severe, ruining chances for the party to hold onto more libertarian, western states, the Upper Midwest and the eastern seaboard.
In sum, the pro-life forces — shocker! — misrepresented their agenda. Should they “win” at the Supreme Court (or even in circuit courts with a Supreme Court decision pending), Collins and other moderate Republicans who voted for Trump appointees will be on the endangered list in 2020 and beyond. Additionally, as extreme state laws make their ways through the courts, women in places such as Georgia and Alabama may be denied abortions even in the first trimester and/or in some cases because of rape, incest or danger to health (if not life-threatening) of the mother, forcing them to become lawbreakers or flee the states. And finally, states that go down this road will face a torrent of public criticism and calls for economic boycotts just as North Carolina did after the transgender student bathroom bill and Arizona did after passing extreme immigration laws.
Make no mistake, laws like Georgia’s and Alabama’s have severe real world consequences for women — and for our politics.