Ticker Views
The Supreme Court triggers war at the ballot box next year
There is no video when the Supreme Court sits to hear cases before it. An inherently conservative institution, the presence of cameras is too jarring for most of the justices, who serve life terms
However, the audio quality is really excellent – and everyone following the abortion case in the US Supreme Court last week was rapt.
Was Mississippi’s law that banned abortion after 15 weeks of pregnancy constitutional?
Could it be squared with two crucial precedents: the ruling, now almost 50 years old, in Roe v Wade, that established a constitutional right to abortion, and a 1992 ruling,
In Planned Parenthood v Casey that affirmed Roe and admonished that undue burdens in state laws could not impede access to abortion services.
What almost everyone listening in to the Court’s questioning of the lawyers heard was that the conflict between the Mississippi law and Roe was a direct one; that at least five justices felt that Roe should yield to Mississippi; that there was little appetite for a proposition from Chief Justice Roberts that the Court could uphold Roe and still permit the 15 week abortion ban to stand, as it just meant a shift of Roe’s window for abortion services from 24 weeks to 15; and that for perhaps the five most conservative justices – Thomas, Alito, Gorsuch, Kavanaugh, and Barrett – there was an all-but-explicit sentiment that Roe had been wrongly decided, and that the precedent should fall.
In other words, it appears from how the justices reacted last week was that there is a clear majority to at the least affirm the Mississippi law and likely to completely overturn Roe – that after 50 years of being on the books, a constitutional right to abortion will be severely limited if not eliminated.
If that happens, what happens next?
If the Court does overturn Roe, it would likely rule that abortion is not a constitutional right and that it is up to the political process to authorize it – or not. This would make the 50 state legislatures – and Congress – the ultimate arbiters of the availability and scope of abortion services.
That would mean that it would be up to Congress to pass a law for abortion services to be available uniformly across the country.
Eliminating a constitutional right that has been in effect for 50 years will be devastating to tens of millions of women across the country. This will provoke a most explosive reaction.
Aside from civil rights and racial justice, abortion is the most significant social issue in the country
The ruling in Roe was sought for decades by abortion supporters, and the repeal of Roe by the Court has been sought by abortion opponents for decades.
Every Federal spending bill has language in it over how Federal dollars can or cannot be spent on abortion services.
Every judicial appointment to the Federal courts is scrutinised and vetted for their position on abortion.
Especially over the last 30 years, this issue has dominated the confirmation process for those nominated to serve on the Supreme Court. Trump was resolute in championing his appointment of anti-abortion justices to the Court.
Trump got three of them approved by the Republican-controlled Senate – upending the Supreme Court’s political balance just so the Court would get to this day.
Since the Court will have shifted the abortion debate from the judicial branch to legislatures across the country, there will be an immense political reaction from coast to coast, and that reaction will be nationalized and carry over into the midterm elections for Congress next November.
Why? Because a state-by-state approach can be transcended if Congress passes a national law to protect abortion rights
While the Supreme Court might strike down Roe by finding there is nothing in the Constitution that provides a right to abortion services, it is not unconstitutional for Congress to pass a law protecting the provision of abortion services to all women in the United States.
Indeed, in anticipation of what the Supreme Court is deciding now, the House of Representatives in September passed, by a party-line vote of 218-211, the Women’s Health Protection Act of 2021, which provides:
“Congress finds… Abortion services are essential to health care and access to those services is central to people’s ability to participate equally in the economic and social life of the United States. Abortion access allows people who are pregnant to make their own decisions about their pregnancies, their families, and their lives,
“A health care provider has a statutory right under this Act to provide abortion services, and may provide abortion services, and that provider’s patient has a corresponding right to receive such services …”
The Senate could pass it too – if there are enough Democrats to vote to change the Senate rules to end the filibuster and allow a simple majority vote on this legislation.
As abortion rights are supported by 60 per cent of voters, suddenly Democrats have a huge accelerator of support in the midterms next November. The message: elect Democrats to Congress if you want to protect abortion rights.