Which the court will probably not do, at least when it comes to Roe. But that’s all part of the plan, which is why Mississippi’s position is so useful: The court can eviscerate abortion rights while claiming that on paper they still exist. At least some people will be fooled into thinking that because Mississippi didn’t get everything it asked for, things could have been worse.
It’s just what the court has done with the Voting Rights Act: First with Shelby County v. Holder in 2013 and then with Brnovich v. DNC this year, the court gutted the VRA, while claiming that it still protects voting rights.
We are at the front end of what may come to be known as the Great Rights Retraction. While liberal ideas are ascendant throughout American politics and culture, six conservative justices — five elevated by presidents who first took office despite losing the popular vote — are engineering a legal revolution intended to roll back and restrict rights held mostly by the less powerful.
Workers seeking dignity and fair treatment, women seeking reproductive autonomy, members of minority groups seeking an unrestricted ability to vote — all will find their rights growing more and more narrow.
I don’t doubt that Mississippi Republicans genuinely want Roe overturned in its entirety. But like anti-abortion conservatives everywhere, they know how far they’ve already come. Existing legal restrictions, harassment, and decades of violence and assassinations have made abortions harder and harder to get, to the point where there is only one abortion clinic left in the entire state of Mississippi.
And they know that with the right ruling, they can achieve just about the same end as overturning Roe even if the court doesn’t do so explicitly.
Casey established the “undue burden” standard, which says that states can restrict abortion so long as the restriction does not create an undue burden on the fundamental right. But what kind of burden is “undue?” That’s where it gets complicated.
States are always trying to see how far they can push those burdens: requiring waiting periods and ultrasounds, TRAP (targeted regulation of abortion providers) laws that impose ludicrous regulations on abortion clinics, limits on how far into a pregnancy a woman can get an abortion, and more.
Texas recently passed an utterly horrifying law which outlaws almost all abortions after the sixth week of pregnancy (before many women know they’re pregnant). It also allows any private citizen to sue someone they think has helped a woman get an abortion, with a $10,000 bounty offered if they succeed, potentially creating a statewide mob of anti-abortion vigilantes, spying on neighbors, relatives, and even strangers to try to haul them into court and grab that ten grand.
That was a novel approach, so it’s hard to know if it will be upheld. But one thing anti-abortion forces are seeking from the Supreme Court is a revocation of the rule set out in Roe that abortion should be presumptively allowed before “viability,” when a fetus can survive outside the womb.
The court could do this while saying they haven’t completely overruled Roe. As law professor Leah Litman predicts, they could “erase the viability line, and say that the undue burden standard doesn’t prohibit bans on abortions at some points before viability if states allow abortions at other points before viability.”
That too would echo their latest voting rights decision, in which Justice Samuel A. Alito Jr. wrote that even if a state imposed harsh restrictions on a means of voting used more often by one group of voters, as long as there are other ways to vote, that shouldn’t be a constitutional problem.
My strong suspicion is that for all their hostility to abortion rights, the more politically savvy of the court’s conservatives — John G. Roberts Jr., Brett M. Kavanaugh, perhaps Amy Coney Barrett — understand what a disaster it would be for Republicans if Roe were overturned. So they’ll try to achieve the end of making it all but impossible to get abortions in GOP-run states, while saying they haven’t actually overturned Roe.
From a legal standpoint, that won’t be hard. They can issue a decision that attacks access to abortion from a dozen different directions and just say that in some abstract sense the right still exists. But the rest of us can call it what it is.
The same applies to all the other ways that at the behest of conservatives and plutocrats this court is attacking rights that Americans ought to enjoy. If the court can’t be stopped in the short term, at least we should understand the radical nature of its project, so that sooner or later we may find the will and the means to reverse it.