Wednesday, July 04, 2018

America, The Frog

When Justice Anthony Kennedy announced that he was on his way out, Slate's legal guy, Mark Joseph Stern described why Roe v. Wade will be overturned without being overturned. He explains

in 1992, the Supreme Court—with Justice Anthony Kennedy’s vote—substantially watered down Roe’s promise in Planned Parenthood v. Casey. The Casey court found that while abortion does fall within the “liberty” protected by the Constitution, states may “enact persuasive measures which favor childbirth over abortion, even if those measures do not further a health interest.” Indeed, under Casey, a state can limit women’s access to abortion, so long as it does not place an “undue burden” on her ability to terminate a pregnancy.

The undue burden test proved infinitely malleable for decades, allowing states to impose draconian requirements on abortion clinics and patients. Legislators shuttered clinics across the country through so-called TRAP laws, forcing many women to travel hundreds of miles to obtain clinic-based abortion care. And even then, they might not be able to get it. States imposed days long waiting periods, as well as mandatory ultrasounds and counseling, during which a doctor could be compelled to tell a patient lies about the procedure. A majority of states have prohibited the use of public funds to finance abortions, and 11 restrict private insurance companies’ ability to cover the procedure. Many clinics simply cannot afford to comply with this onslaught of regulations. Today, there are seven states in which there is just one extant abortion provider....

Here is what will happen. A state will create some extreme obstacle to abortion access, like Arkansas’ effort to ban medical abortions. Advocates will sue, alleging that the law is unconstitutional. The Supreme Court will take the case. And it will hold, by a 5–4 vote, that the law in question is not an “undue burden” under Casey.

Then the floodgates will open. Republican legislators will realize that the court’s conservative majority has given them the high sign: It will affirm the legality of any abortion restriction that comes before it. The court does not have to declare that it is overturning Roe and Casey in order to do so. It need only snip away at these precedents until nothing is left of them. And then, if the court so chooses, it can acknowledge what it has done and formally announce that there is no longer a constitutional right to abortion.

Anyone nominated by President Trump understands this. That is why it will be unnecessary for the nominee to thrust aside precedent, to advocate overturning Roe v. Wade- or even admitting that she believes it was wrongly decided.

It would also be periloux for the nominee to admit the latter, and probably suicidal to admit the former. One of the two presumptively swing GOP senators, Maine's Susan Collins, has stated "I would not support a nominee who demonstrated hostility to Roe v. Wade because that would mean to me that their judicial philosophy did not include a respect for established decisions, established law.”

The nominee will not demonstrate hostility to Roe v. Wade. Collins has already indicated that is her red line. Trump has gotten the message, telling Maria Bartiromo (at around 2:00 of the video below) abortion policies "could very well end up with (the) states at some point."  It's pretty striking," Chris Hayes tweets "how resolutely disciplined Trump has been on judges. No tweeting crazy stuff that poisons the well. Basically allows the largely outsourced process to run its course."  (When necessary, the mythical "out-of-control" Trump is nowhere to be found.)

The President gets a second individual on to the United States Supreme Court.  He declares victory. He may even get to gloat while we "win too much." Forced birth advocates will get their way as Roe v. Wade is effectively repealed, all the more satisfying for the mainstream right because it will be done piecemeal, state-by-state, avoiding the backlash from pro-choice Republicans wary of outright repeal.

It would be only fitting that if reproductive freedom is swept away, it is done in this manner. The forced birth movement is predicated on the fiction that where abortion is illegal, the doctor is culpable while the woman requesting the "murder" is a victim.  "The court does not have to declare that it is overturning Roe v. Casey," Stern maintains, "only snip away at these precedents until nothing is left of them." And so, like the boiling frog, freedom dies gradually, so as not to arouse outrage.

                                        HAPPY INDEPENDENCE DAY

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