Republicans love to campaign against abortion. It keeps more than half the Catholic voters in their pockets. Of course, if legal abortion ever ends they will be like the dog who caught the mail truck.
So it has been deemed wise, for almost 50 years to pass bills in one house of Congress that the other house won’t take up or the president will veto or — the ultimate backstop — the Supreme Court will rule unconstitutional. If Roe v Wade were once and truly reversed, they would have nothing to huff and puff about, and a lot of people, mostly women, would never forgive them.
That is why Chief Justice John Roberts’ reversal of, um, himself came as a relief to the Republicans who are in the know.
It was Roberts who, while not agreeing with the four supposedly liberal members of the court, gave them the win in the case from Louisiana decided last week. The Court’s conservatives voted, as they were appointed to do — for the position with which Roberts agreed four years ago, in dissent, when a nearly identical law from Texas was held unconstitutional.
Justice Brett Kavanaugh came through for his side. He was the replacement for Justice Anthony Kennedy, who was the fifth vote to overturning the law when it came before the Court from Texas. When it came back, from Louisiana, if everyone else voted as he or she did in the past, Justice Kavanaugh would be the fifth vote to make the law that was unconstitutional in 2016 constitutional in 2020.
But the Chef flipped.
The contortions were juicily laid out by Linda Greenhouse in the NYT. You can wallow in it there.
I would simply like to add a little bit:
1. Roberts based his controlling opinion on stare decisis — the theory that identical cases in law should produce identical results. Every appointee to the courts testifies that oh, yes, Sir and Madam, he just loves stare decisis and has several for breakfast every day. But Roberts is the justice who cited the Brown v Board of Education desegregation decision to hold that desegregation isn’t necessary in a 2007 case. That decision was a little shaky in the stare, but he got solid with it again last week.
2. Republicans who didn’t know better called for Roberts’ impeachment or, more creatively, said President Trump must be re-elected to finish creating the anti-Roe court they thought he completed with the appointments of Justices Gorsuch and Kavanaugh. The idea that political ideology matters is true. But it is one of those things people tended not to say in public until anti-abortion folks started shouting it every January 22 and all election days in between.
We don't normally talk about it because the nation is calm and at its best when we all pretend the justices interpret the law as they see it, and that the law itself is their only constituency. That is never strictly true; it is a useful fiction. It is the thing that gives the Court the authority to issue its decisions without bringing on revolts, rebellions and revolutions.
The right-to-life movement has done more than its share to make the highest court in our system look like just another nine hacks, as the incumbent president himself sees them. That result is not good for our future. And last week the movement lost again in its pursuit of the ever-elusive goal that its loudest allies hope it will never reach.
When the history of the abortion controversy is written, the bishops and their legal advisers will not come out looking good.
The image that comes to mind is the Peanuts cartoon where Charlie Brown is about to kick the football and Lucy moves it, yet again.
ReplyDeleteAs I understand it, there were some pro-life advocates who thought that pushing the Louisiana case was the wrong idea, precisely because of stare decisis. The way to understand it, from that perspective, is that it was sort of a test: what had changed since the prior Texas case was the composition of the Court. Was the five-justice conservative majority just looking for any excuse to make a major change to Roe v Wade case law? No way to know for certain except to throw a case their way and see what happens. So that's what happened - and we see the result of the test.
ReplyDeleteMy (extremely amateur) reading of the situation is that this case was the wrong one. But there are others on the way which won't run into the same stare decisis problem. One reading of Roberts's opinion (which I haven't read, and don't have the expertise to interpret, so I'm just rehashing here what I've read elsewhere) is that he telegraphed some clues about what he'd be open to.
A variation on the preceding is: instead of making one big, dramatic change, the Roberts court prefers to "chip away" incrementally, e.g. by continuing to lower the legal threshold of viability in the womb.
The dog actually has caught the mail truck any number of times in the last 15-20 years, but it's happened in state capitals rather than in Washington DC. Most of the pro-life action has been in states like Louisiana.
If the Roe v Wade mail truck ever does get caught and stays caught, abortion won't become illegal across the US; I believe that the crazy quilt of state laws will then spring to life, and then we'll see lobbying explode at the state level.
Greenhouse explains how Chief Roberts kept the door open for salami tactics aiming at making abortions harder to get until, lo, it becomes impossible to exercise what is still a "right."
DeleteState capitals are like Congress. They know they most likely won't get past the Court of Appeals, and, if they do, the Supremes will do what they did to Texas and Louisiana. It will be kudos, boys, for trying, and a sigh of relief from those who will try again as long as there is someone to stop them.
I've noted before that even if the national devil is driven out, 50 more devils will arise to eat up legal fees as the great and good continue to have it out with the unwashed and saved in saecula saeculorum amen.
Overturning Roe v Wade won’t end abortion. Some red states may ban it completely. Blue states will keep it. Maybe with some tweaks. But it will be legal. A desperate woman in Alabama with money will go somewhere like New York. The poor woman will find a back alley abortionist. Some of those women may die. Just like in the good old days.
ReplyDeleteAnne, perhaps you're right that there will be some "back alley abortionists".
DeleteThis Atlantic article from a couple of years ago looks at the situations in a few countries which might strike a pro-choice person as the worst legal situation: abortions are illegal, and doctors are legally obligated to report women they treat for botched abortion attempts. There are some deaths, but the death rate seems low. The game-changer, compared to the pre-Roe days, is that women can terminate pregnancies without the need to visit an abortionist by taking abortifacient drugs: it seems that in these countries, the go-to drug is misoprostol, especially when taken in combination with mifepristone. According to the Atlantic article, pregnant women in these countries are able to order these drugs online, and there are women's support groups to assist women who may have problems with literacy, Internet access or similar obstacles.
https://www.theatlantic.com/health/archive/2018/10/how-many-women-die-illegal-abortions/572638/
It's difficult to imagine that these supports wouldn't spring up instantly in the Bible Belt states which are able to significantly restrict abortion availability. In addition, I fully expect that we will be awash in funds from private sources to assist pregnant women who wish to abort, e.g. by paying their procedure, transportation and temporary housing costs to transport them to states where abortions are more widely legal.
Of course, my point of view in all this is that virtually every abortion attempt ends the life of a human being who hasn't been born yet. It would be best to prevent that from happening. In my view, that would involve, not just a change in law, but a wide set of changes: legal changes, more responsible sexual behavior by both men and women, better financial support and health care for women who are at higher risk of unwanted pregnancies, not just at the time of the pregnancy but throughout their childbearing and childrearing years.
Ultimately, the goal is to bring more children to term and beyond to have a healthy and flourishing family life after birth. (Of course, I'd go even beyond that and add, "... and to get to know God, to love him, to serve him and to be with him forever." But I don't think that part of it is susceptible to a legal solution.) If laws can help achieve fewer abortions, that is great. But surely it's not the be-all and quite literally it wouldn't be the end-all.
Btw, I read a rumor-mill item somewhere that Justices Thomas and Alito, both of whom are in their 70s, are contemplating retirement. I don't doubt that Justice Scalia's death while still on the bench has all the older justices thinking about the possibility of stepping aside while they're healthy enough to enjoy retirement.
ReplyDeleteI'm sort of surprised in Alito's case, because I had been thinking that, should Roberts step aside some time while a Republican is president, Alito would be the conservative on the court to backfill the Chief Justice. But Alito is older than I had realized - I think he's 71 - and it seems likely that any president with the opportunity to nominate a Chief Justice is going to pick a younger person.
If things go according to recent form, then if Biden wins this fall (and how could he not?) then neither Alito nor Thomas would retire. If the Democrats also pick up the Senate this fall (a distinct possibility), then their successors would swing the balance back to the liberal side. If the Republicans somehow retain control of the Senate with Biden in the White House, then we'd be looking at the real possibility of unoccupied seats on the Court remaining empty until at least 2025.
The Lincoln book I mentioned I'm reading basically covers the first half of the decade of the 1850s. As I mentioned, most of the book has not been about Lincoln per se, but rather the regional and national events and issues that swirled around while he was 'retired' from politics, practicing law as a country lawyer in Springfield, IL after his single term in the US House during the Mexican War. This was before the advent of the Republican Party and his run against Stephen Douglas for the US Senate which propelled him to national attention. The battle over slavery informed everything - all the politics, all the policymaking, all the intrigue, all the chaos. The Whig Party, which had been a true national party for several decades, was cracking up. And the Missouri Compromise, which had been the truce over slavery for 30+ years, came to an end.
I suppose the parallels between the slavery issue then and the abortion issue now have limits - but they also are real. Abortion influences, dominates and, some undoubtedly would say, distorts much of our politics. It certainly overrides all other considerations when it comes to the composition of the Supreme Court. If it were possible to come to some sort of national truce or consensus on abortion, the filling of Supreme Court seats might be able to revert to best-available-jurist considerations (as opposed to "best available jurist who will be a reliable abortion vote"). At this point, hard to see how we'll get there, though.
I wrote: "If the Republicans so mehow retain control of the Senate with Biden in the White House, then we'd be looking at the real possibility of unoccupied seats on the Court remaining empty until at least 2025."
DeleteThat may not be accurate; a third of the Senate is up for election or re-election every two years. So it would be 2023. (Or would it be 2022? Do new senators start their terms before a new president does?)
Congressional terms start right after the New Year begins, ahead of the inauguration of the president, but not by much.
DeleteIf a justice were to die now, would the Turtle invoke the Obama rule and hold up the appointment for the next president? Or would the Turtle assume Trump's continuation in power, so oder so, and ram through Jared's appointment? I'd guess the latter, although failure to notice a bounty on our troops seems, at last, to have tarnished the Golden Boy in the eyes of some previously blinkered Republicans.
"If it were possible to come to some sort of national truce or consensus on abortion... " We might sort of be there, temporarily at least. Not about judicial appointments, but about the election. I have always maintained that one-issue voting isn't possible, in spite of what some people say. It's always a package deal. And the package now is the Trump Administration, and all its works and pomps. That's proving too toxic, even for a lot of pro-life people. So I don't think abortion is going to be a big factor in the election. Of course this is 2020, the year of COVID, riots, and murder hornets, so anything could happen.
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