We’re one case away from outlawing abortion

Published 6:44 pm Tuesday, May 21, 2019

By Dick Polman

Anyone who still assumes that legal abortion is here to stay, and that Roe v. Wade is the settled law of the land, should take a hard look at what’s happening right now in red America.

Indeed, to best understand Alabama’s passage of a bill outlawing virtually all abortions (even in cases of rape and incest), and Georgia’s passage last week of a bill outlawing virtually all abortions at six weeks (before most women even know they’re pregnant), and the recent passage of similar six-week bans in Ohio, Mississippi, and Kentucky (even though Roe says that most abortions are legal up to 24 weeks), we need only reference the words of the current president. The same guy who used to give money to Planned Parenthood.

On the 2016 campaign trail, Trump morphed into an anti-abortion zealot. During a televised event in March of that year, when asked how he would ban abortion, Trump replied: “You’ll go back to a position like they had where people go to illegal places. But you have to ban it. There has to be some form of punishment (for doctors).”

A ban that would force women to “go back” to back-alley illegal abortions? No wonder the religious right got so excited. Trump promised that, if elected, he’d remake the Supreme Court and ensure that Roe was erased. During an autumn debate, he vowed that his conservative appointees would overturn the 1973 ruling that gives women the right to control their bodies. In his words, “it will happen, automatically.”

Duly inspired, the GOP’s evangelical base suppressed its qualms about Trump’s amoral character and forged a marriage of convenience. It delivered landslide support — favoring him over Hillary Clinton by 81 to 16 percent, the widest margin of any 2016 voting constituency.

And today, duly encouraged by the ascent of Supreme Court justices Neil Gorsuch and Brett Kavanaugh, conservative allies in various red-state legislatures are concocting draconian anti-abortion laws that are blatantly unconstitutional and will likely be tied up in litigation limbo. But that’s precisely what they want, because they’re playing a long game. As one key Alabama sponsor says, “What I’m trying to do here is get this case in front of the Supreme Court so Roe v. Wade can be overturned … This is the way we get where we want to get eventually.”

The days of incrementally undermining Roe at the margins — with state laws that require waiting periods, anti-abortion “counseling,” various costly regulations that are impossible to meet — are decidedly over. Republicans now believe they finally have five high court votes to kill Roe entirely, thanks to Trump, and they’re hoping that their new frontal attacks on abortion will wend their way to the bench for an historic decision.

Their strategy may not necessarily work. Linda Greenhouse, a Yale Law lecturer who covered the court for decades as a journalist, acknowledges that the anti-abortion extremism currently being unleashed in red states is “shockingly aggressive (and) purport to take us back to the pre-Roe regime where abortion was criminal.” But Greenhouse also thinks the new laws in Alabama, Georgia, Ohio, Mississippi and Kentucky are too extreme for John Roberts’ majority coterie, and believes the court will simply continue to whittle away at Roe.

“If Roe finally falls, it’ll fall with a little push of a pinkie, rather than a frontal assault,” Greenhouse said.

Perhaps. But it’s clear that the anti-abortion forces, with Washington winds at their back, have all the momentum — and there’s a lesson in that for pro-Roe liberals and Democrats, a lesson that never seems to be learned.

Republicans and their religious right allies don’t care what the polls say (according to the Pew Research Center, 58 percent of Americans want abortion to be legal in all or most cases, while only 37 percent say otherwise). Instead, they simply act on their convictions. They plan for the long haul and they execute that plan. They forged a transactional pact with Trump because they prioritized the importance of the Supreme Court.

Liberals and Democrats have never prioritized the Supreme Court. One might’ve assumed that the Democratic base would be ginned up about the court’s future composition — given the fact that Senate GOP leader Mitch McConnell spent most of 2016 burying President Obama’s nomination of Merrick Garland — but nope.

So Democrats — and the majority of women who typically vote for Democrats — are now suffering the consequences. The protections for women, enshrined in Roe 46 years ago, now hang in the balance. In Linda Greenhouse’s words, “It’s all about the dignity and agency of the female half of the population. And that’s what’s at stake.”

DICK POLMAN is the national political columnist at WHYY in Philadelphia and a “Writer in Residence” at the University of Pennsylvania. Email him at dickpolman7@gmail.com.