A woman’s liberty interests are unique
The Supreme Court knows who is a woman and who isn’t. Women are those people the government gets to force to bear children against their will. Women are those people who can’t make their own decisions about their own lives. Women are those people whose bodies belong to the state.
Until now, all the court’s abortion decisions have upheld Roe‘s central framework — that women have a constitutional right to an abortion in the first two trimesters of pregnancy when a fetus is unable to survive outside the womb, until roughly between 22 and 24 weeks.
But Mississippi’s law bans abortion after 15 weeks. A separate law enacted a year later would ban abortions after six weeks, and while the six-week ban is not at stake in this case, the state is now asking the Supreme Court to reverse all of its prior abortion decisions and to return the abortion question to the states.
And since Donald Trump (who is a fan of abortion when the fetus is his) appointed three anti-abortion justices to the Court, Roe v Wade is screwed.
[Lawyer Julie Rikelman of the Center for Reproductive Rights] argues that under the amendment’s “explicit protection for liberty,” the court has protected marriage, contraception and intimate relationships, even though those words are not in the Constitution, “just as it has protected the ability to make basic decisions about our bodies for over 100 years.”
“What’s critical to remember,” she contends, “is that the court has long said that a woman’s liberty interests are unique when it comes to pregnancy. Her body and health are deeply affected by pregnancy, as is the course of her life, her ability to work, go to school and to prosper.”
And it’s her body and her health – not the state’s and not the fetus’s.
But the Court is what it is, so we’re going backward.
It’s always dangerous to try to read the tea leaves of oral argument, but it’s not looking good from what I heard.
Roberts seemed to be fishing for a compromise that would alter Roe/Casey without completely overruling it, but it didn’t appear that any of the other justices were biting. Kavanaugh and Barrett were trying to position overturning Roe/Casey as the neutral, compromise position — we’re not going to FORCE states to ban abortion, after all! (This relates to a rather nasty bit of Overton Window gamesmanship by the antichoice movement — they filed an amicus brief arguing that the constitution requires states to protect “life.” There was never a serious hope of getting that ruling, the point was just to test out this bit of framing.)
Though in a way, I almost prefer if the Court explicitly says “Roe and Casey are overruled, there is no right to abortion” as opposed to a Roberts-engineered “there is still a right to abortion, but it can be outweighed by a stiff breeze, so we’ll end up affirming any anti-choice law that gets passed.” The media would be dumb enough to be duped by the latter; with the former, there’s no way of avoiding the huge screaming headlines, just in time for the 2022 midterms.
Of course nothing in this will affect the ability of the ilk of Donald Trump getting abortions for his mistresses. Abortions will continue to be legal somewhere in the US, just not everywhere. The law changes are only going to affect women who don’t have enough money to escape red states to get medical care.
Evangelical women, and Catholic women, get abortions at the same rates as other women. As long as they have the money, they can continue to. As always, the Republicans know they can count on Democrats to clean up their messes.
And even if not, it’s easy enough for him to fly his mistresses to other countries. Also, if they break the law, they go to prison, not he. Right?
It won’t end with the overturning of Roe v Wade, with individual states then setting their own abortion laws. Think back to the Supreme Court’s decision in Dred Scott back in 1857 which ruled that a slave taken by their owner to a free state was still the master’s property, in effect extending slavery everywhere. This Supreme Court may well take up a case where a women from a state that doesn’t allow abortions who travels to a state that does in order to get an abortion is breaking the law of her home state. Oh wait, Texas already had done this and the Supreme Court gave it a back door procedural pass.
It’s not at all inconceivable that this Supreme Court could in effect criminalize abortion everywhere, by the simple expedient of making abortion providers in states that allow abortion guilty of a crime if a woman seeking an abortion is from a state that doesn’t allow them.
There’s already federal anti-abortion laws in place — the so-called “Partial Birth Abortion Act” of 2003, upheld by the Supreme Court in a 5-4 vote in 2007 (thanks, Justice Kennedy).
The only thing that might stop the GOP from banning abortion nationwide the next time they have a federal trifecta is, ironically, the Senate filibuster. And while I doubt that Mitch McConnell (or whoever succeeds him) would hesitate to abolish the filibuster for something he really wanted, it’s just possible that there enough GOP senators who prefer to posture on the issue but not take the hit for actually legislating. Still, that’s not the way I’d bet.
As others have noted, privileged women like the members of political families will always be able to take a “shopping trip to Montreal” or wherever to get a discreet abortion. I suspect the real explosion is going to be in the black market for abortion pills.
So an enhancement to Dredd Scott wherein women are the property of their domiciliary state. Does this also follow Texas born women who choose to live in another state (or country), but are still stamped with the Lone Star for life?
Attempting to force other states to enforce the laws of other states was very much one of the major causes of the ACW… Admittedly the borders in this fight are less clear cut but that can’t go anywhere good in terms of increasing the tension.
Do they want the state to collapse?
This is the first I’m hearing that Texas attempts to punish people who get abortions in other states. When trying to find evidence for this I instead found a lot of articles like this about women streaming to neighboring states to get abortions:
https://www.cbsnews.com/news/texas-abortion-law-pushes-women-to-clinics-in-other-states/
Which at least implies Texas is not and can not do anything about abortion in other states.
I don’t think the die is cast on what the Supreme Court will do. 3 of the conservatives are believed to be disinclined to overturn previous Supreme Court precedent.
Skeletor, you must have been lying under a rock (gravestone?) back in late August/early September. Law twitter had a number of lively discussions on the topic. To a non-lawyer like me it looks really complicated, but it seems the situation goes a bit like this:
– The woman getting the abortion cannot be punished.
– A person providing assistance can be punished via civil suit.
– That is by means of ANYONE lodging a civil suit against them.
– If the person performing the abortion is a Texas registered doctor, but performs the out-of-term abortion in an out of State clinic, then the Doctor can be sued. If the Doctor is not registered in Texas, then no, they can’t be sued.
– If a private person or an organisation provides assistance or encouragement to a woman to cross to another State for an abortion, then civil suit can most likely be taken against them.
I understand it hinges upon whether the relevant Court has personal jurisdiction, and Texas law leans heavily on the side of enabling that. T. Greg Doucette (@greg_doucettee) has a lengthy thread discussing that point.