The Supreme Court appears poised to put the country on a slope so slippery that it will make a white-iced roadway look safe to speed on, and even the triple-strong brakes of a Formula 1 race car would be unable to stop the country’s drive into yesteryear.
At Wednesday’s Supreme Court hearing in Dobbs v. Jackson Women’s Health, Mississippi’s challenge to Roe v. Wade, Justice Brett Kavanaugh threw Mississippi Solicitor General Scott Stewart a “softball” question. Kavanaugh asked Stewart to confirm that Mississippi is “not arguing that . . . this Court has the authority to order the states to prohibit abortion.” Stewart dutifully answered, “Correct, Your Honor.”
And so, Justice Kavanaugh queried, why should the Court not just be “scrupulously neutral” on the left-right battle over women’s reproductive rights and the asserted right of a fetus to be born? Why not leave the decision on where to draw the line up to each state?
This seems like the tried-and-true approach of someone seemingly devoted to federalism, closely related to “states’ rights.” It was good enough for “separate but equal” segregation in many states up to the Court’s 1954 decision in Brown v. Board of Education, and, at first glance, it appears good enough for decimating women’s reproductive freedom in 2021.
Conservatives like Kavanagh love federalism until they don’t. For now, it works for him, and apparently for at least four other conservative Justices. But once Roe has been consigned to the dustbin of history, the slope will soon get slippery in the extreme, and neither federalism nor states’ rights will stand in the way of the right wing’s even more aggressive, anti-abortion agenda.
There is real danger in a kind of post-Roe letdown, with women in blue states feeling secure in their rights while those living in red states are left to fend for themselves should they want to terminate a pregnancy.
Defenders of women’s reproductive freedom can ill afford such a letdown or blue-state complacency. The real answer to Kavanagh’s softball question about whether the Court was being asked to ban all abortions everywhere was “Not yet, just wait.”
The path toward such a possibility was signaled when Justice Amy Coney Barrett posited, via her questioning, that there was no grave intrusion on a woman’s right to choose because potential mothers use contraception to prevent pregnancy or elect adoption after. That appeared to many as insensitivity-on-prednisone.
Underlying it was the furthest thing from neutrality. It takes one of two circumstances to minimize the pain of a mother having no post-pregnancy choice but to give a born child up for adoption—one has never been in the situation or, more importantly, one believes unequivocally in the rights of the unborn.
That’s the heart of the matter. It is easy to foresee that in at least one Justice’s opinion if not the Court’s, there will be reverential mention of those previously unrecognized rights and references, like those heard throughout the Court’s oral argument, to the fetus as a person or a child.
And there will lie the iced roadway to not only the end of abortion rights in some states, but ultimately in all. For once that premise is laid in a reactionary Court, how long can it be before a “reverse” case is brought under the banner of what lawyers call “substantive due process,” asking the Court to hold that the taking of a fetal life is a constitutional violation of its 14th Amendment interest in “life”?
This after-Roe agenda that Kavanagh and Barrett previewed is no secret among movement conservatives. As Dan McLaughlin, a senior writer at National Review Online, ominously warned in that magazine’s recent issue devoted to abortion, “Nobody ever said that protecting unborn life would be easy or that major cultural debates could be settled without strife . . . . Ending Roe would be, as Churchill once said, neither the end nor the beginning of the end, but the end of the beginning.”
Hadley Arkes, reflecting on the Dobbs oral arguments in First Things, a religious journal founded “to confront the ideology of secularism,” pointed the way to what is coming next on the post-Roe agenda when he asked, “[I]f the law protects human life, why should it not also protect the small life in the womb that has never been anything less than human from its first moments?”
To make sure that no one missed the point, he warned that a “Court that sends things back to the states…without saying anything on the question of moral substance, is a Court that will leave us with no coherent sense of what this warring argument over 50 years has really been about.”
McLaughlin and Arkes alert us to the fact that moving to stop all abortions is a central plank in the right wing platform to achieve “post-liberal America.”
And, should the Republican trifecta of 2016 recur – control of the House, Senate, and White House – how long can it be before there is a carve-out to the filibuster to pass a law declaring the fetus to be a person entitled to federal civil rights protection? With Republicans moving steadily to control the states’ apparatus for vote counting, that scenario is easy to imagine.
Now comes the ever coy, seemingly credulous Senator Susan Collins to propose the antidote: national legislation to codify Roe. She is apparently “shocked! shocked!” by the hearing in Dobbs.
Any objective observer could be pardoned if the phrase “Too little, too late” crosses her mind. “Too late” because Collins had her chance when she chose instead to accept at face value then-Judge Kavanaugh’s pablum, pre-confirmation hearing assurances that Roe was the law of the land and that he believed in stare decisis, without her insisting that he complete his pledge by saying that he would actually honor Roe’s precedent in abortion cases. “Too little,” because her new proposal would require at least a pro-reproductive choice carve-out of the filibuster, and that appears nowhere in sight.
The Supreme Court train is leaving the station. There is only one realistic rail-switch to return the law and our country to a side-track turnabout. That is to organize for the coming election.
Women and men offended by the coming decision to overturn Roe can protect women’s rights by electing representatives who believe in those rights.
Those citizens should join with groups already mobilized to defend our freedom to vote and use it to protect the freedom of women to control their bodies and the autonomy and dignity of all citizens that is the hallmark of our Constitution.