The Supreme Court is likely to overturn the landmark ruling that guarantees the right to abortion in the US. Here’s why – and what might happen next
The Christian Right and the Republican Party have worked for decades to chip away at the abortion rights that the 1973 landmark ruling Roe v Wade and the 1992 case Planned Parenthood v Casey are supposed to guarantee.
Now, a new case at the US Supreme Court (the country’s highest court) threatens to make the right to abortion care a thing of the past. So, what exactly is at stake and why is this happening?
Mississippi’s 15-week abortion ban
On Wednesday 1 December, the Supreme Court heard oral arguments in Dobbs v Jackson Women’s Health. In this case, Mississippi’s ban on abortion after 15 weeks is being challenged. A ruling is expected in June 2022.
Under the prevailing understanding of the law, the ban is unconstitutional: in the 1992 case Planned Parenthood v Casey, the Supreme Court reaffirmed that individual states cannot restrict abortion before approximately 24 weeks gestation. This is called the ‘viability of the foetus’ standard. Bans like Mississippi’s clearly fail to pass muster.
But court observers understood immediately during the hearing on 1 December that the court is set to uphold Mississippi’s 15-week ban. Why?
Nine justices sit on the court. Six of them are conservatives and are inclined to support the anti-abortion side of the case. Only one of those six – chief justice John Roberts, who is more concerned with the court’s legitimacy than his more zealous colleagues are – seems to hope to finagle a way to uphold the specific Mississippi ban without overturning Roe in its entirety.
But justices Amy Coney Barrett, Brett Kavanaugh, Neil Gorsuch (all appointed by President Trump), Samuel Alito and Clarence Thomas form a majority without him.
Roe will fall, not only in reality but also in law (de facto, but also de jure – to put it in legal terms), unless Roberts can win some of them over.
The Roe ruling is already so weakened that its guarantee of the right to abortion is almost meaningless across much of the US. Upholding Mississippi’s ban would be the final nail in the coffin, whether or not Roe is officially overturned next June.
A partisan court
Make no mistake: if the Supreme Court upholds Mississippi’s ban, it will bring immeasurable harm to people who can get pregnant. But perhaps a ‘positive’ outcome is that people may start understanding just how political and partisan the illegitimately stacked court’s majority has become.
Conservative powerbrokers undoubtedly understand that overturning Roe outright might galvanize Democrats ahead of the midterm elections being held in November 2022 – thereby threatening Republicans’ chances of taking control of Congress. However, the Right’s stranglehold on power in the US is so entrenched that this may not matter; and it’s unclear whether the Supreme Court’s five radical right-wing justices would care either way.
Using a passive construction that obscures the authoritarian dynamics in play, Time Magazine tells us that “The Court has grown more conservative over the last few years.” But it’s critical to understand that the transformation of the Supreme Court into a political institution didn’t just happen by accident.
With the full support of the Christian Right and the Republican base, Republican senator Mitch McConnell, senate majority leader at the time, made an unprecedented move in 2016. He refused to give a hearing to President Obama’s nominee for the Supreme Court, Merrick Garland (currently the US attorney general).
Arch-conservative Antonin Scalia had died unexpectedly in February of that year, opening up a seat on the court. Despite Obama putting forth a highly qualified, moderate candidate, Republicans made a bad-faith argument that new appointments to the court should not be made during a presidential election year.
This meant that Donald Trump got to appoint the new justice in 2017, soon after winning the presidency: right-winger Neil Gorsuch.
Republicans stacked the Supreme Court with right-wing, anti-choice, partisan justices in a brazenly hypocritical manner
In 2020, in identical circumstances (a new appointment to the Supreme Court in an election year), the Republicans ignored their previous stance and rushed through the nomination and appointment of Trump’s nominee: Amy Coney Barrett. She took over the seat vacated by the death of Ruth Bader Ginsburg, a reliable liberal much loved by American feminists.
In other words, the Supreme Court “has grown more conservative” because Republicans stacked it with right-wing, anti-choice, partisan justices in a brazenly hypocritical manner.
Honest observers of Republican radicalisation were not surprised. It turned out that the people who had spent decades screaming about supposed liberal “activist judges” were in fact concerned with getting their own “activist judges” in place.
Sadly, no serious effort to restore impartiality and fairness (by expanding the Supreme Court, for example) has been made so far during President Biden’s term, and it seems unlikely that any such effort will materialise.
The pundit class’s conventional wisdom about the Roe ruling until recently was that Republicans would never ‘allow’ it to actually be overturned because without it they would lose a rallying cry that reliably motivates their right-wing Christian base to vote.
As someone who grew up within the world of right-wing evangelicalism, I always knew this conventional wisdom was wrong. What I want to stress now is that, in a post-Roe US, the authoritarian Right will still have plenty of issues to rally its base around.
The notion that the theocratic zealotry that pervades the current Republican Party will simply dissipate if Roe is struck down is profoundly naive: contraception and LGBTQ rights will be next on the chopping block.
As I’ve said before, you may not come from Jesus Land, USA, but Jesus Land is coming for you. The gravity of this moment cannot be overstated.
(c) 2021, Open Democracy