Jane Coaston is joined by the Times Opinion columnist Michelle Goldberg and editorial board member Jesse Wegman to discuss the implications of the draft opinion and the future of abortion rights in America.
TL;DR Talking Points:
- Abortion becomes illegal in half the country
- A total nationwide abortion ban is possible
- Clinics is blue states will become overcrowded
- Women with miscarriages will be suspected
- Women will be prosecuted and imprisoned
- Same-sex and interracial marriage not threatened as much because these rely on 14th Amendment equal protection clause
- Some forms of contraception will be illegal
- Allows very draconian laws to be passed
- Democrats might as well kill the filibuster for this because Republicans are sure to do so should they hold the Senate.
- SCOTUS has become profoundly politicized
- Backlash against Republicans will be significant. [A large crop of one-issue blue voters will emerge.]
- This is a product of minority rule.
- Democracy in the US is backsliding
- SCOTUS legitimacy is in question. Precedent means nothing now. The court can no longer be considered an impartial arbiter.
- Women are no longer equal. We will join countries where women are prosecuted, imprisoned, and needlessly suffer and die just because they are women.
- Many lives will be ruined before this gets corrected.
It sends the decision back to the states. It allows states to ban abortion outright if they choose. It allows states to legalize abortion if they so choose. Most states, I think if not all states, are on the record as doing one or the other of those things, or regulating it somewhere in between.
I wouldn’t be surprised to see a very strong effort nationwide to not just send this matter back to the states, but to make it difficult for states to legalize abortion at all.
I think that there will be a debate, if there’s ever a Republican trifecta again, which there’s likely to be, about whether they should get rid of the filibuster in order to enact a total abortion ban.
The estimates I’ve seen are that in somewhere between 24 and 26 states, abortion will be banned. So in blue states, abortion will still be available. Although what’s going to happen is, it’s going to become harder to access, just as a matter of crowding. Every state with functioning clinics is likely to be overrun.
The other thing I think is going to happen is that women who have miscarriages are going to come under a lot of suspicion — maybe not all women, maybe not white middle-class women with private doctors, but a woman who shows up in the hospital having a miscarriage, it’s going to be, “What did you do to cause this?”
And so it’s just going to be a mess, because again, so many of these decisions are going to be left to individual prosecutors. And also because doctors are going to have to operate under sort of the worst-case scenario of how this legislation can be interpreted.
before Roe, women by and large were not going to prison for clandestine abortions. They would sometimes be threatened with prosecution in order to get them to testify against doctors or against abortion providers, but abortion was the crime — the crime wasn’t murder. And so we now have a very different situation after 49 years of arguing about fetal personhood, of arguing that abortion is kind of a type of homicide.
You’re already seeing a bunch of cases where women have been prosecuted under fetal homicide laws or fetal endangerment laws for doing drugs while they were pregnant, for attempting suicide while they were pregnant. And it’s only been Roe v. Wade that has stopped prosecutors from prosecuting women who have abortions. They’ve always had to have an exception in these fetal endangerment and fetal homicide laws for abortion because of Roe v. Wade. But that, in a few months, likely changes. So we already have some intimations of what this is going to look like.
There’s a whole paragraph of the draft decision that ties Casey to a bunch of decisions, including Loving v. Virginia, which struck down laws against interracial marriage. The case Skinner v. Oklahoma, which was about the right not to be sterilized without consent. Very disturbing. It also discusses such cases as Lawrence v. Texas, which ended sodomy bans, and Obergefell v. Hodges, which instilled marriage equality across the land.
that equal protection would be a stronger foundation for the right to choose to terminate a pregnancy, just as it is the basis of the right to marry the person of your choosing.
the one thing that I think is most immediately endangered, besides legal abortion, are some forms of birth control. Possibly Plan B.
It says laws regulating abortion “must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests.” And those interests includes, it continues, “respect for and preservation of prenatal life at all stages of development.” So it definitely gives the OK for total abortion bans and could possibly be interpreted to include some sort of forms of contraception. that language that Michelle just quoted, “rational basis,” is the lowest bar that the government needs to clear in order to get judicial approval of a law.
So when the court uses those magical words “rational basis,” it’s essentially a green light for governments, state or federal, to pass whatever laws they want on the subject. Only the most egregious laws that have zero basis in any conceivable legitimate objective will be struck down. But that’s generally understood as saying, go for it.
If Republicans have a chance to pass a total abortion ban by getting rid of the filibuster, I would put money on them doing it. So I’m not that concerned about Democrats getting rid of the filibuster and then having it come back to bite them when Republicans use it against them.
it could just as easily have been leaked by somebody on the right who wanted to lock in support for this very strident opinion before people that they see as kind of squishier watered it down.
I think it reflects a growing politicization at the court, which is absolutely the intent, I think, of Senate Republicans in particular, who have spent the last six years, especially, engineering the court precisely for this moment.
This opinion, this decision when it comes down, as with so many other decisions of the last couple of years and of the decades going forward, are purely the result of the makeup of this court and nothing else.
Nothing about the law has changed. Nothing about the facts on the ground have changed. It is about who is on the court. And that is why Mitch McConnell held a seat hostage to get the man he wanted on the court, rather than the person that Barack Obama would have appointed, who almost certainly would have upheld the right to an abortion.
That is why when Ruth Bader Ginsburg died so painfully close to the election, the Republicans scrambled like bats out of hell to get Amy Coney Barrett onto the court so that they would have a solid five-member majority — at least a five-member majority — to overturn Roe v. Wade. And I think we just can’t let that out of our sights. The makeup of the court is the central deciding factor in every decision that gets made by the Supreme Court.
There’s been much, much more energy on the right in recent months. And people assumed and hoped, that would change once Roe v. Wade was overturned. Whether it actually will? I think for some people it certainly will. For some people, this is going to be a wake-up call.
I think that the place where I suspect it will have the most political impact is where it will make things like total abortion bans — without rape and incest and health of the mother exemptions — very live issues.
I’m so curious about that because, again, this has been the carrot waved in front of social conservatives and the Republican Party for 50 years. So there’s been a lot of absolutism discussed among people who are opposed to abortion, particularly on the right, that they are well aware does not poll well.
this is the essence of conservative rule right now. It is a fundamentally minoritarian rule. The Democratic candidate has won more votes for president than the Republican candidate in seven of the last eight elections. And yet we have a six-to-three supermajority of conservatives on the Supreme Court.
Researchers of democracy and comparative democracy have found that curbs on women’s rights are correlated with democratic backsliding, and that the two move hand in hand. When women’s rights are more restricted, more reduced, you have more backsliding in democratic practices.
The court is an extremely fragile institution in American governance. Its legitimacy derives entirely, entirely from the public’s acceptance that it is a fair and neutral arbiter or that it attempts to be a fair, neutral arbiter. When the people don’t have that confidence in the court, it loses its legitimacy. And then all bets are off.
what has led me to feel that this is an illegitimate court is what Senate Republicans led by Mitch McConnell have done over the last six years to stack this court explicitly for the purpose of overturning Roe v. Wade. And a whole other slew of rulings that they’ve been frothing at the mouth to get through for many, many years, in some cases, decades.
And what’s happening to get to those rulings is the overturning of established precedents, as here with Roe v. Wade, a nearly 50-year-old precedent now, that nobody was having trouble implementing. There was no question the American public had changed in its feelings about whether a woman should have the right to decide what happens inside her own body. I think it’s currently around 80 percent of Americans feel that, at least in some circumstances, women should have the right to have an abortion. So overturning a precedent with no basis, no grounds along the lines of what the court generally relies on to consider overturning precedent, is a real blow to the stability of the law and the legitimacy of the body that interprets it finally. the overturning of Roe v. Wade, if it does indeed happen — and I think all signs point to that being the case — is going to be one of the most significant blows to this court’s legitimacy in the eyes of a whole swath of Americans, not just those who are openly pro-choice.
Women obviously don’t already have full equality in this country, but it just seems to me that equality cannot exist under this degree of regulation, when anyone’s uterus is a potential crime scene, when people are subject to this level of surveillance and control. Again, both people who might need and choose abortions, but also people who probably think that this doesn’t apply to them.
I’ve traveled to a lot of countries where abortion is illegal and what you end up seeing is that the best argument against abortion prohibitions is what they look like in practice, right? Because you always end up seeing women being prosecuted, women being hospitalized. Once people see what this does, it ends up creating momentum for repeal. It’s why there have been very few countries that have rolled back abortion rights in recent years, and far more countries that have liberalized them. But it takes a while. I think that eventually with the real-world ramifications of the end of Roe v. Wade, and the passage of total abortion bans in many states, people are going to see what that looks like, and there’s going to be a backlash. But so many people’s lives are going to be ruined before that happens.
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