As we await the Supreme Court’s ruling on whether to overturn Roe v. Wade — and it probably won’t come down until late spring — what you can be sure of is that whatever the decision turns out to be, it won’t end anything, including abortion.
In fact, if Roe is overturned, abortion politics would grow only hotter and, of course, more divisive than ever.
Abortion rights — even more than guns, I’d pose — have been the ultimate battleground in the never-ending American culture wars. We can forget about the dog whistling on critical race theory or the waging of the phony war on Christmas. This isn’t like deciding whether a baker can refuse to make a cake celebrating a same-sex marriage. It’s not even like whether a mask mandate to fight a deadly virus is, by any standard, an assault on, uh, freedom.
If, as seems likely, Roe is overturned — or, at minimum, hollowed out to the point that “undue burden” and “viability” will lose all meaning — abortion politics will now require that everyone take a stand on how much, if at all, a state can limit a woman’s right to choose to have an abortion.
We remember well the Cory Gardner-Mark Udall Senate race of 2014, in which we were repeatedly assured that Gardner’s anti-abortion stand would have no impact on the future of abortion rights. We may even remember the since-renounced Denver Post editorial endorsing Gardner on that very principle.
Well, that’s over and done. Gardner was there to ensure — by helping to deny Merrick Garland a vote and then fast-tracking Amy Coney Barrett — that Donald Trump got three Supreme Court selections, all of whom, Trump had promised, would be votes to overturn Roe. From now on, and maybe forever, every vote for Congress, every vote for state legislature, will be, at least in part, a vote on abortion rights.
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That’s already the case for Supreme Court nominees. We remember how Sen. Susan Collins assured us that Brett Kavanaugh would never vote to overturn Roe and how all the recent nominees pledged their fealty to judicial precedent, otherwise known as stare decisis.
I have always maintained that overturning Roe would be a disaster for Republicans. It was easy enough, as Gardner understood, to be anti-abortion when there seemed no chance that Roe would be overturned. But virtually every poll you see on the topic shows overwhelming support for Roe and support for abortion rights in general.
Colorado, which was, of course, the first state to significantly loosen restrictions on legal abortions, is one of many states that doesn’t have a law in effect that would guide the state in a post-Roe world. That will change in the next legislative session, as Leslie Herod points out in a Sun column. Many state legislatures, on both sides of the issue, won’t wait for a ruling. They’ll lay down their markers before the court does.
There is also the question of how it would play in the 2022 midterms. The ruling will come only a few months before the election. Try to imagine its impact in, say, the Colorado races, a state that is overwhelmingly pro-choice.
There are other questions, of course. If Roe is overturned and maybe half the states either ban abortions or greatly limit them, it will be one more argument about economic injustice in America. We’ve already seen a string of restrictive laws — on abortion, on voting — that will make it more difficult for poorer people to access their constitutional rights. Overturning Roe would make it all but impossible for many to get an abortion.
There would also be even greater pressure for reluctant Senate Democrats — not only Joe Manchin, by the way — to eliminate the filibuster, in order to pass laws not only on voting rights, not only on climate change, but now on preserving abortion rights and also taking some steps toward Supreme Court reform.
I thought it was semi-hilarious when justices — mostly the conservative ones, but also the liberal Stephen Breyer — were recently heard complaining about being called partisan hacks, as if their votes weren’t so often politically motivated. This isn’t a new charge, but now that we have the most conservative court in my lifetime — a court that now seems ready to complete a 50-year project to overturn Roe — we’ve heard the noise getting louder. We might even be close to the decibel level of impeach-Earl-Warren days.
During oral arguments, the few remaining liberals on the court hit hard on the point that nothing has changed since the Roe v. Wade decision except for the philosophical and political makeup of the court.
Sonia Sotomayor made explicit what many people are thinking about the legitimacy of the court. “Will this institution survive the stench this creates in the public perception, that the Constitution and its reading are just political acts?” she asked. “If people believe this is all politics, how will we survive? How will this court survive?”
Stench is the word that will stick. Stench is a tough word by Supreme Court standards. And legitimacy is a tough issue.
We could use the example of Kavanaugh, who said during his Senate confirmation hearings that Roe was “settled as a precedent of the Supreme Court” and “entitled to the respect under principles of stare decisis.”
He wasn’t saying that during oral arguments. He was asking whether the constitution wasn’t “silent and neutral” on abortion and was praising past rulings overturning precedent — among them Brown on “separate but equal” and Baker v. Carr on one person, one vote and, yes, Miranda rights to protect a suspect’s Fifth Amendment right against self incrimination. But as several of the liberals pointed out, these were rulings that pointed in the direction of granting rights, not in taking them away.
If you want to understand what’s at stake, read Ruth Marcus’ brilliant analysis in the Washington Post on the topic. She began by citing iconic liberal justice William Brennan who would explain to his new clerks about the Rule of Five — that with five votes, you can do anything. But now Marcus says there is a Rule of Six, with six solid conservative votes on the court. Chief Justice Roberts was the swing vote. Now, if he votes with liberals, as he did in saving Obamacare, the conservatives still win. During oral arguments, he was the one justice who seemed to be looking for a compromise on Roe.
From Marcus: “A five-justice majority is inherently fragile. It necessitates compromise and discourages overreach. Five justices tend to proceed with baby steps. A six-justice majority is a different animal.”
A six-justice majority is now firmly in control. There are the hard-right conservatives — Thomas, Gorsuch, Alito — aligned with the not-quite-as-hard-right conservatives — Roberts, Kavanaugh and Barrett. And then there are the three liberals — Sotomayor, Kagan and Breyer.
I grew up in the time of the Warren Court, which helped make it possible for civil rights laws to flourish — laws that are now nearly universally accepted. But because Americans somehow elected Trump in 2016, conservatives will have the Rule of Six upper hand. There’s a gun case coming up in which the court’s decision will almost certainly mean even more guns in America.
Who knows what comes next? And more to the point, who knows if any so-called “settled law” is still safe?
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.