When the history of how American women lost their reproductive rights is written, the bill-signing that took place in Oklahoma City on Tuesday should be acknowledged as a key moment when the shrinking window of possibility that the Supreme Court might hold back from overturning Roe v. Wade essentially closed forever.
The occasion was Gov. Kevin Stitt (R) signing a bill outlawing almost all abortions in the state, a move that is as plainly unconstitutional as it would be for the state to make it illegal to practice Judaism or criticize the president.
Why is this one bill in this one state so meaningful? Because it makes the death of Roe almost inevitable, and because it highlights Democrats’ impotence in the face of an assault on women’s fundamental rights.
Sometime soon, the court will issue its ruling in Dobbs v. Jackson Women’s Health Organization, a case that concerns Mississippi’s ban on most abortions after the 15th week of pregnancy. Over the past year or so, there has been a steady shift in what advocates and analysts think the court will decide. At first, many believed the justices would find some clever way to undermine abortion rights without issuing a ruling explicitly overturning Roe. The theory was that, because the issue is so politically volatile and carries risks for the Republican Party, the justices would be hesitant to do it all in one fell swoop. While the court’s most conservative members (particularly Justices Clarence Thomas and Samuel A. Alito Jr.) have made their desire to do so clear, the more incrementalist conservatives, particularly Chief Justice John G. Roberts Jr., would want to proceed carefully even if they shared the same ultimate goal.
So while there was no question they would undermine reproductive rights in significant ways, the final outcome was in doubt. But today, there are fewer and fewer observers who think that’s true. What has changed is not just the actions of the justices themselves, but the part Republican state legislatures are playing in the dance between the court and the political sphere.
Oklahoma and other states with outright bans in the pipeline have essentially forced the court’s hand. As Scott Lemieux points out, stopping short of overturning Roe “only works if Republican-controlled legislatures were willing to play along.” Oklahoma’s ban will be challenged, and sooner or later the court will have to rule on it, or another state ban like it.
Faced with upholding or striking down a near-total ban such as Oklahoma’s, the court can’t take half-steps. The justices can’t find refuge in debating the number of weeks into a pregnancy restrictions might be allowed, or whether some hoops states make women jump through are acceptable and others aren’t. They’ll have to decide on the fundamental question: Either women have a right to abortions, or they don’t. And the court’s conservative majority clearly thinks they don’t.
This demonstrates that when we say the Supreme Court is “political,” we don’t just mean that the justices themselves have political agendas. We also mean that the court and its rulings exist in a political context, and can be influenced and shaped by other political actors.
And right now, Republicans across the country are emboldened. They’re not waiting for the Supreme Court to give them what they want, they’re going to force it to do so. Unfortunately, at the moment there isn’t much reason to think Democrats’ response will be anything but weak and ineffectual.
In blue states, Democrats are passing laws to enhance and secure abortion access. But although national Democrats could make the assault on women’s rights a mobilizing issue for the midterm elections, they seem reluctant to do so. Instead, they’re spending their time debating how best to focus on “kitchen table issues” and politely ask Republicans not to hit them too hard.
Meanwhile, Republicans know that even in the face of the Supreme Court’s ongoing assault on fundamental rights, only their side seems to care much about the future of the court. So Senate Minority Leader Mitch McConnell (R-Ky.) can make it clear that Republicans will never again allow a Democratic president to fill a Supreme Court vacancy, and barely anyone takes notice, as if, hey, that’s just politics.
That’s why my great fear is that the court will overturn Roe this summer, consigning tens of millions of American women unfortunate enough to live in red states to a grim future, and Democrats will issue some stern press releases about it, then after a day or two go back to saying how they care about gas prices, too. Then they’ll be obliterated in the midterms, lose the House and Senate, and tell themselves it was all the left’s fault.
That’s by no means a certainty. It’s possible that when the demise of Roe is not a future possibility but something that has actually happened, Democrats will feel the appropriate anger and rise up in response. It sometimes takes that kind of a shock to produce a real mobilization.
But make no mistake: Once Roe is gone, conservatives aren’t just going to declare victory and stop working. They’re coming for birth control next. When that happens, will Democrats finally act like it’s the emergency it is? I wish I could say I knew.