The Question Is How Roe Will Be Killed, Not If

In the latest act of active collaboration between Republican elites and their white nationalist authoritarian leader, elected despite losing the popular vote with the collaboration of foreign ratfucking, Anthony Kennedy has handed Donald Trump a Supreme Court seat. One of the many bad things to result from this will be the end of reproductive freedom for many American women:

So, to put it bluntly, Roe v. Wade is dead. The days of the Supreme Court protecting the reproductive freedom of American women are about to end. The only question is how. It won’t necessarily happen with a quick decision announcing explicitly that Roe is overruled. It will be chipped away at, slowly but surely, state by state.

In 1988, Chief Justice William Rehnquist attempted to replace — not overrule — Roe with a new standard that would permit virtually all abortion regulation. The other justices were not fooled by the gambit. “I am not in favor of overruling Roe v. Wade,” wrote Justice John Paul Stevens in a cutting memo, “but if the deed is to be done I would rather see the court give the case a decent burial instead of tossing it out the window of a fast-moving caboose.” And, ultimately, Rehnquist lacked the votes to accomplish his goal, as the Republican swing votes Justices Kennedy and Sandra Day O’Connor ultimately voted to preserve Roe in modified form.

But Kennedy and O’Connor are gone, and Chief Justice John Roberts, who is fond of this kind of hollowing out of precedents, may well pursue a similar strategy to Rehnquist’s. Rather than overrule Roe right away, the court can simply take cases that uphold tight regulations but stop short of a ban, while inviting states to keep pushing the envelope. Eventually, a law will force the court to overrule Roe or strike down the law, and it will almost certainly do the former. But it may not happen before the next presidential election.

What will this mean? First, there will be an explosion of TRAP laws, or regulations aimed at making it harder and harder for abortion clinics to operate. The Supreme Court recently refused a challenge to an Arkansas law banning medication abortions, and these laws are clearly not going to be struck down now, so many other states will follow Arkansas’ lead. Even before Roe is technically overruled, there may be multiple states with no abortion clinics in operation.

Many states will probably also continue to regulate the time frame during which a woman can obtain an abortion. Iowa, for example, recently passeda law making abortions illegal after six weeks of pregnancy. The court might not start by taking a challenge about a law that draconian — which would force a direct confrontation with Roe — but it probably will signal to states that they can ban a larger and larger group of pre-viability abortions and pass an array of regulations that make it more difficult for women to obtain abortions at any time in the pregnancy.

The consequences will be bad, and in some cases deadly. Many women will lack access to safe abortions, and poor women and women in rural areas will be hit the hardest. This, ultimately, will be a major part of Anthony Kennedy’s legacy: the immolation of the reproductive freedom he once cast a crucial vote to protect.

We don’t know if Roe will be strangled to death or quickly executed and buried in an unmarked grave, although Roberts’s fondness for bullshit-minimalism suggests the former is more likely. But those are the only remaining questions.

On May 31, 2016 @HillaryClinton delivered a speech on the future of SCOTUS: "The court can either make America a fairer place, or roll back the progress we’ve worked so hard to achieve."

Here's how it was covered by the press 👇 pic.twitter.com/oM8ZrRJGH7

— Corey Ciorciari (@CoreyCiorciari) June 27, 2018