Next week (by Thursday, February 7, to be exact), the United States Supreme Court will be faced with a basic decision: whether to allow a lower court’s ruling—diametrically at odds with the High Court’s own precedent—to stand, or whether to stay that lower court ruling, and allow an appeal of it to be considered. In a normal, sane world, where the judicial process functions as it was designed to function, there would be only one, obvious answer to such a question, and one, obvious outcome.
But because the issue being decided is abortion, and treads directly into an ideological divide painstakingly fostered for decades by a radical and inordinately powerful cult of right-wing social engineers calling itself the“Federalist Society,” the odds are better than even that the Supreme Court will abandon its core principles and allow itself to be fully co-opted by ideology. The practical effect of that abandonment, however justified in dry legalese, will be to set the stage for the wholesale criminalization and outlawing of virtually all abortions in nearly one half of this country, most likely within a matter of a few months.
On February 7th, under its current schedule (late Friday night Justice, Samuel Alito issued a temporary extension to allow the Court to further “review” the filings of the parties), the Supreme Court will issue a ruling in the case of June Medical Services v Gee. That case involves a Louisiana law restricting doctors from performing abortions in that state, by forcing onerous and unreasonable “hospital privilege” requirements onto them. The purported purpose of the law, as articulated by its anti-choice backers, is to “protect” those people who choose to exercise their Constitutional right under Roev. Wade to terminate an unwanted pregnancy. Its real purpose is to make the act of obtaining an abortion as difficult as possible. As explained by Ian Millhiser, legal affairs columnist for ThinkProgress:
Gee involves a Louisiana law requiring “a physician performing or inducing an abortion” to “have active admitting privileges at a hospital that is located not further than thirty miles from the location at which the abortion is performed or induced and that provides obstetrical or gynecological health care services.” If that law sounds familiar, that’s because it is identical, almost word-for-word, to a Texas law that the Supreme Court struck down in Whole Woman’s Health v. Hellerstedt.
If the Louisiana law goes into effect, the number of doctors “permitted” to perform abortions in that state will be reduced to one or (possibly) two. That’s two doctors to perform the approximately 10,000 abortions sought in Louisiana every year.
What makes the posture of the Gee case so unusual is that, despite the Supreme Court’s decision invalidating these types of laws in Hellerstedt, a federal court of appeals, the Fifth Circuit, which occupies a judicial tier in our system secondary only to the Supreme Court itself, has brazenly and directly repudiated the Supreme Court’s 5-3 Hellerstedt decision, essentially daring the Court to overrule it.
The reason the Fifth Circuit felt it could do so was because the composition of the Supreme Court has dramatically changed since Hellerstedt was decided. In place of Justice Anthony Kennedy, who provided the critical fifth vote in the Hellerstedt opinion (Justice Scalia had died and his all-but certain vote was denied to the dissenters), and thanks to Donald Trump and Republican Senate Majority leader Mitch McConnell, we now have Neil Gorsuch and Brett Kavanaugh making decisions about reproductive rights. That makes a 5-4, solidly anti-choice majority. And that, in the opinion of the right-wing, anti-choice 2-1 panel who comprised the majority opinion in Gee, and the right-wing, anti-choice 9-6 majority of the Fifth Circuit who refused to take up the case—thus allowing the Louisiana law to go into effect—makes all the difference.
In January 2019, The Washington Post Magazine wrote that the Federalist Society had reached an "unprecedented peak of power and influence." Of the nine members of the Supreme Court of the United States, five (Brett Kavanaugh, Neil Gorsuch, Clarence Thomas, John Roberts, and Samuel Alito) are current or former members of the organization.
The Fifth Circuit is convinced that the hard-right, Federalist-society-vetted ideological makeup of the new Supreme Court majority will now support the same restrictions on abortion that the Court had previously repudiated. And they are probably right. After all the sordid details about rape, perjury and drunkenness in Brett Kavanaugh’s confirmation hearings had dissipated into last year’s news cycle, with so-called “pro choice” Republican Senators like Susan Collins obediently falling into line, there really was only one reason Trump nominated him: to overrule Roe v Wade.
Yes, the court is very unlikely to hand down an opinion this week which uses the words “Roe v. Wade is overruled.” But these abortion providers filed this application because a federal appeals court openly defied the Supreme Court’s most recent abortion decision. When the court refuses to enforce its own decision, that will send a clear signal to lower court judges throughout the country that they are free to uphold restrictions on abortion.
Years before mail-order abortifacients, “morning-after” pills, and and other less intrusive means of “allowing” the termination of an unwanted pregnancy appeared on the scene, the clarion call of the pro-choice movement was to ensure that Roe v Wade, the landmark 1973 decision establishing the right to terminate a pregnancy free of government interference, was never overturned. And Roe v Wade itself proved resilient, even while its foundations were slowly chipped away by the likes of William Rehnquist, Antonin Scalia and Clarence Thomas, all of whom, with varying motivations, rejoiced at the prospect of its ultimate demise. But even as clinics that performed the procedure dwindled, and doctors who performed the procedure either disappeared or were hounded by violent “Christian” extremists, a sort of hopeful numbness settled in, to the point where younger people felt that the battle over abortion had been, if not, strictly speaking won, then reduced to a perpetual and listless stalemate.
But the Supreme Court now has its chance to kill Roe v Wade, without leaving its messy fingerprints on the body.
[T]he consequences of a 5–4 decision permitting [The Louisiana law] to take effect would extend far beyond one state. It would indicate that the Supreme Court’s new majority has retreated from Whole Woman’s Health, signaling that states are free to ignore it and pass stringent laws targeting abortion clinics. Once Whole Woman’s Health is functionally overturned, Roe itself will be next on the chopping block. After all, Whole Woman’s Health really just re-affirmed the fundamental principle that states may not devise pretextual excuses to deny women control over their reproductive rights. Once that rule is scrapped, states will be unleashed to regulate abortion out of existence within their borders.
And states with Republican governors and Republican-dominated legislatures are salivating to do just that. As noted by Nancy Northrup of the Center for Reproductive Rights, representing the abortion providers in Gee, all Republican eyes are now eagerly awaiting the Court’s decision with legislation in hand, ready for immediate passage.
So far this year, state legislators around the country have proposed more than 100 bills that would further restrict abortion. Anti-abortion politicians are hoping that the Supreme Court will stand by and let them legislate abortion out of reach — without the court ever having to reverse Roe v. Wade and related cases assuring access to abortion. That would be death to Roeby a thousand cuts.
So if the Court allows the Fifth Circuit’s repudiation to stand, we will immediately see a cascade of effects in state legislatures throughout the country.
But laws restricting clinics out of existence will be just the beginning. Because the religious, evangelical fanatics driving these anti-choice legislators will not stop there. In the face of a complacent Supreme Court, we will see laws in certain states criminalizing the usage of “morning-after” pills or other “less intrusive” means of terminating a pregnancy. For those who attempt to obtain such medicines by mail, we will see laws in certain states that impose lengthy prison sentences for doing so. For those who attempt to cross state lines to obtain an abortion in a state that is not dominated by Republicans, we will see laws punishing them (and those who assist them) for doing that. We will see laws imposing severe criminal penalties on any doctors who perform the procedure, which will have the practical effect of driving underground anyone who wants to terminate their pregnancies.
And yes, we will ultimately, eventually see women imprisoned, strapped down onto a gurney, and forced to give birth, their children then summarily taken from them. It’s not clear what will happen to those children, though. Republicans have never given that aspect much thought.
So to sum up, by this Thursday, if the Supreme Court rules according to their long-implemented designs, Republicans everywhere should be ecstatic. They will finally be able to achieve what they always claimed to have wanted—the thorough, pervasive criminalization of abortion throughout a large portion of the country.
How women will react to this new reality, if it occurs, remains to be seen.