Few expected it to happen quite so quickly. Most thought this version of the Roberts court, with the recent additions of Gorsuch, Kavanaugh and Barrett, might tread softly before making the awful power of its 6-3 conservative majority fully known.
But no. The court has wasted no time diving headfirst into the most contentious battleground in the culture wars — taking up a radical Mississippi abortion law that has every chance to either overthrow Roe v. Wade or seriously undercut it. Court watchers believe those are the stakes, but let’s agree that the stakes are not all that clear. We have no idea, really, what the court might do, how political it will turn out to be, how much influence a moderating John Roberts, as Chief Justice, will be able to wield.
But the fact that it took a case so clear cut as the Mississippi case suggests, we’re told by court watchers, that this may be the real ball game. What we know for sure is that the court will take up the Mississippi case, Dobbs vs. Jackson’s Women’s Health Organization, which would ban abortions, in nearly all cases, after 15 weeks. The case should be heard in the fall, meaning a decision would be expected to come in the spring of 2022, just as the midterm elections come into focus.
The standard for abortion is the fetus’ viability, which comes at around 24 weeks. The standard being pushed in Texas and other states is a fetal heartbeat, which is the first cousin to personhood. If Roe is either overturned or seriously undercut, it’s hard to see how the 2022 election could be about much else.
This is the real dividing line. This is not the transgender wars. Or whatever cancel culture is. Or mask wearing as an assault on liberty. Only guns can approximate the level of division and the level of emotion we see in the abortion wars. It should be noted, though, that the court is also taking up a gun law and also taking a shot at that old standby, affirmative action. We will now see what judicial activism, from the right, really looks like.
We’ve watched this dance play out over many years. The long march toward this kind of Supreme Court majority has been a GOP promise that was never quite kept — until now. The stakes always seemed higher to Republicans than Democrats, maybe because too many liberals believe in the notion of settled law and, of course, the line about the long arc of the moral universe bending toward justice.
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My theory has long been that Republican leaders understand that overturning Roe would be a potential disaster for them. It’s the case of the dog finally catching the car and then having no idea what to do next. Polls routinely show that a majority of Americans back the right to an abortion. If Roe, along with Casey, were scuttled, the laws would go back to the states — Colorado had its abortion law in place long before Roe — and red vs. blue would come to look like tiddly winks. You think we’re divided now? Just wait.
Democrats would finally have to push to codify Roe v. Wade, and we can see those battles played out over decades with dozens of possible outcomes.
And so now, as we wait to see how the court rules, we’re left to relitigate how we got to this point, not that it matters much for the future. Anyway, it’s all very obvious. In Colorado, it played out right in front of our eyes. We saw Mark Udall mocked — infamously by The Denver Post editorial page, which later, much too late, would apologize — for insisting that abortion rights were central to the Udall-Cory Gardner race.
Of course, Gardner won that race. He’s gone now, but in his six-year term, Gardner was able to help Mitch McConnell keep Merrick Garland from getting a vote — remember, and try not to laugh or cry, that the nomination was said to be too close to the election, even though it came many months before. And then in a shameless show of hypocrisy — shameless even by today’s standards — Republicans would pretend that it didn’t matter that Amy Coney Barrett’s nomination came only weeks before Trump would be tossed from office. Gardner was there for that one, too.
These things will not be forgotten, of course. But you won’t see court packing as a way to settle the balances. There aren’t the votes, even among Democrats. You probably won’t see, if Joe Manchin sticks to his guns, a Democratic hope to end the filibuster.
Personally, I have no idea what would happen, other than the fact that poor and minority women would suffer and that life for the rich and upper middle classes, who could book a week in Aspen on the way to the abortion clinic, wouldn’t change much at all. But that’s taking far too limited a view of the situation.
Yes, it would be awful for individuals. But it would also be a giant step back societally, an evangelical Christian-based step back, a “Handmaid’s Tale” step back, a blow against modernity and human rights. Elections have consequences, as we’re constantly reminded, but who would have thought that the consequence of the (let’s hope) anomalous Trump election would result in three Supreme Court selections?
I always thought of the MAGA hats as symbols of the politics of empty sloganeering. And yet, here we have a 6-3 Trump court, a majority of which might as well have those red hats tucked tightly inside their gowns.
Mike Littwin has been a columnist for too many years to count. He has covered Dr. J, four presidential inaugurations, six national conventions and countless brain-numbing speeches in the New Hampshire and Iowa snow.
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