Some Initial Thoughts on the Death of Roe

Some Back of the Envelope Thinking

I HATE TO SAY I TOLD YOU SO

I just have some quick, back of the envelop thoughts on the impending death of Roe v. Wade and Casey v. Planned Parenthood. I’m sure there is going to be some really comprehensive analysis coming from folks who are better versed in this issue than I. So, while I’m working on other stuff, I’ll let the experts do the talking. I do, however, have some stuff on my mind that needs expression because it’s the end of the school year and my capacity to concentrate on more than one thing is a bit tattered right now.

In the event that you have given up on following the Swiftian news cycle you should be aware that a draft of the Supreme Court decision for Dobbs vs. Jackson Women’s Health was leaked to the press (I suspect John Roberts!). It’s important to note that this is not the final decision, but rather a draft written months ago. This draft is subject to revision and justices have been known to change their minds between the original draft and the final ruling. The actual ruling may be subject to change going forward.

At least that’s the story that is intended to calm us all down. We really don’t know until the final ruling is released.

But, come on! We know.

By my reasoning there are only two possible outcomes for Roe in the months ahead, one more moderate, one more radical.

The most radical is just exactly what the draft reveals. Roe and Casey will be overturned and a woman’s right to reproductive health care will depend entirely on the state she lives in and the relative power of the most regressive parties in that state.

The more moderate prospect is what I can call the “Weekend At Bernie’s” option. This seems to be John Roberts’ goal. In essence, Mississippi’s draconian abortion law will be upheld using some technicality without directly overturning Roe. Roe will be dead in all meaningful ways, but it’s body will still be lounging on the legal couch…very quietly. Conservatives will be able to point at the continued symbolic existence of Roe as evidence that the Supreme Court is not simply the rubber stamp of the modern conservative movement.

These prospects are distinctions without a difference in the real lives of women in regressive states all over the country.

The first thing to come to my mind as I read the draft report is: elections have consequences. I remember and even wrote about the liberals and progressives I talked to in 2015 and 2016 who didn’t want to vote for Hillary because she was “untrustworthy”, “emails”, “cheated Bernie”, “Wall Street Speeches”, “not a real progressive”, whatever. Well, here we are. By choosing to not vote for Hillary, liberals opened the door for an ally of the theocratic right to choose three justices for the Supreme Court. These three justices were vetted specifically for their position on Roe. He said he would do this. It was no surprise. But some in the center or left were so caught up in the purity of their beliefs that they turned their back on strategy.

Advocate in poetry. Vote in prose. After all, that’s what the theocratic right did…and it worked. The pro-lifers were willing to hitch their wagon to whatever horse they felt would bring them closer to their goals, no matter how unsteady. They were even willing to vote and advocate for arguably the least Christian candidate ever to run. God works in mysterious ways.

The next thing to cross my mind is how complacent we tend to become with regard to the rights we have. We make an assumption that we have these things called inalienable rights. That once these rights are established, there’s nothing more to do. The impending Roe decision should dispel this misunderstanding. There’s no such thing as inalienable rights, or even rights in and of themselves that stand alone and cannot be touched. Every single so-called right that we have was fought for, often tooth and nail, often in the face of relentless opposition from conservatives. Once a right is established, it immediately becomes a target for the regressive forces intent on undermining or eliminating said rights. That’s what “regressive” means!

How many years of organizing were required to established a right to a safe, legal abortion? I’m not expert, but it looks like we’ll be starting from square one. Indeed, we’ll be starting even further back from square one because the forces arrayed against us are already organized and entrenched in the political establishment. We will be building from scratch.

My most pressing thought, however, is where do the regressives go from here. Now that they’ve all but won the fight against a federally guaranteed right to an abortion, what’s the next target on the hit list?

I see two immediately in the cross hairs. First is, of course, state laws establishing or protecting a right to abortion. If you think you are safe because you live in a state that protects your reproductive rights, you are sorely mistaken. All of the right-wing exultations about states rights and letting the state legislatures decide, is and has always been nothing more than rhetoric. When the right can use a federal process to overturn a right they oppose that is protected at the state level, they will not hesitate the pull the trigger. Expect abortion protections in your state to be challenged in the courts with the full knowledge that once that case gets before the Gorsuch/Kavanaugh/Barrett Court it will be struck down and abortion will become illegal all over the country. The goal is not and never has been to let the states decide. The goal is to take over women’s reproductive right nationwide. If abortion is murder in Texas, it must also be murder in California.

The next target is Obergefell. The regressive right smells blood in the water. They don’t even want to sell cakes to same sex couples. What do you think they’ll do when they get a chance to strike down another “leftist” Supreme Court decision.

Don’t say I didn’t warn you.


Addendum

One final note. Conservative justices couldn’t have picked a better time to overturn Roe, if in fact that is what they are intent on doing. The GOP does not have to worry about a presidential election. Politically, Republicans are at an advantage in the upcoming midterms. Worst case scenario for the legislative elections is they don’t gain enough seats to take either the House or the Senate (unlikely). Regardless, they will certainly not lose enough seats to cost them their power to clog up the legislative works. There may be some costs at the state level, but the GOP may be counting on redistricting and gerrymandering to do much of the heavy lifting on this score. Regardless, the time is ripe for taking this profoundly unpopular stance. The costs will be slight, but the potential gains from fulfilling a foundational promise to their base is incalculable.

On the other hand, there is an argument that ultimately satisfying the so-called pro-life base could backfire as the GOP would lose this issue as a campaign matter, at least at the national level. I’m not sure I buy that argument, but it should get a hearing.

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