For 46 years, the right of women to choose abortion in the most common circumstances has been part of the constitutional law of the land. For nearly that long, Republican presidents — the men with the exclusive power to make appointments to the federal judiciary in 26 of those 46 years — have criticized the Roe v. Wade decision that legalized abortion nationally. Indeed, from 1980 on, the quadrennial Republican Party platform has called not simply for the reversal of Roe, but for federal constitutional protections for “unborn children,” overriding any state’s wishes. The GOP is now so thoroughly a party of undivided opinion on this subject (as opposed to their rank and file, which includes a sizable pro-choice minority) that of 250 Republican members of Congress, only two (Senators Collins and Murkowski) support abortion rights.
Yes, as any anti-abortion activist can bitterly tell you, their movement has often been disappointed by the conduct of Supreme Court justices appointed by Republican presidents:
When the big opportunity to reverse Roe came along in the 1992 case of Planned Parenthood v. Casey, all five Justices voting to maintain a constitutional right to an abortion were Republican appointees.
But over time, and with the right-to-life movement obtaining an ever-tighter grip on the GOP and — through such intermediaries as the powerful conservative legal organization the Federalist Society — on judicial appointments, the tide has slowly turned. As the New York Times’ Linda Greenhouse explains in an article that should terrify anyone who cherishes reproductive rights, a veritable “insurrection” against abortion rights has developed in the federal judiciary, in conjunction with Republican-controlled state legislatures.
Within the next few weeks, a challenge to Louisiana’s abortion law … will arrive at the [Supreme] court as a formal appeal. Louisiana requires that doctors who perform abortions in that deeply anti-abortion state do the impossible by getting admitting privileges in local hospitals. The law is “substantially similar” to the Texas law the Supreme Court declared unconstitutional in Whole Woman’s Health v. Hellerstedt in 2016, the United States Court of Appeals for the Fifth Circuit conceded, in an opinion that implausibly upheld the Louisiana law nonetheless.
The Fifth Circuit is the court that upheld the Texas law. Yes, it’s the very same court the Supreme Court reversed in 2016, concluding that the law imposed an unconstitutional “undue burden” on women’s access to abortion by forcing most of the state’s clinics to close while providing none of the health benefits the state claimed for it.
What makes that remarkable is that lower courts are supposedly tightly bound by Supreme Court precedents — in a way that SCOTUS itself isn’t quite so bound. The Fifth Circuit is essentially being defiant. And as Greenhouse notes with a number of examples, that’s not unusual when it comes to the reproductive rights that many judges adamantly oppose. Just as importantly, they and would-be counterrevolutionaries on the Supreme Court are being given an abundance of opportunities to chip away or overturn abortion rights by state legislatures:
Republican presidents since Ronald Reagan have looked for judges and justices who could be counted on to oppose the right to abortion. To a startling degree, the fruits of that effort are apparent in the cases now making their way to the Supreme Court. Red states are competing with one another to enact abortion restrictions that, while flagrantly unconstitutional under current law, could provide opportunities for the newly composed Supreme Court to reopen the issue. The Guttmacher Institute, a research organization that supports reproductive rights, reported last week that since the beginning of this year, 304 abortion-restricting bills have been introduced in state legislatures. Lower court judges are constrained by Supreme Court precedent to invalidate these new laws, but the opinions by which they are doing so are suffused with their personal views on abortion and their complaints about how the high court has tied their hands.
If and when the edifice of Supreme Court doctrine on abortion rights comes down, the floodgates to restrictive laws will be open, too, with conservative lower-court judges welcoming them with open arms.
No one at this point knows where the dam will break; it might happen soon, or might require another Trump appointment to the Supreme Court. But Greenhouse is alarmed:
Of all the recent rulings, the decision that took me most by surprise and gives me the most concern was handed down two weeks ago by the United States Court of Appeals for the Sixth Circuit. The court upheld an Ohio law that bars state public health money from going to any organization that performs abortions. For “any organization” read Planned Parenthood, which receives no public money for abortions, but that for years has administered government grants for six public health programs, including H.I.V. testing, cancer screening and sexual violence prevention. Planned Parenthood is the largest provider of H.I.V. testing in Cleveland, Akron and Canton. It performs abortions at three of its 27 clinics in the state …
A Federal District Court barred the law from taking effect, in a decision upheld by a three-judge panel of the appeals court. But fortified by the addition of four Trump-appointed judges, the full court reheard the case and voted 11 to 6 to reverse the panel and uphold the law, with all the new judges in the majority.
As Greenhouse notes, federal courts have long held that the right to have an abortion implies the right for providers to perform them. But that’s precisely the argument that the Sixth Circuit rejected. If SCOTUS agrees, all sorts of TRAP laws (Targeted Restrictions on Abortion Providers) might pass muster, and abortion rights could become largely hypothetical, particularly for low-income women in Republican-controlled states.
Anyone who has grown complacent about the regime of legal abortion created by Roe v. Wade needs to wake up and smell the pungent odor of a brewing counterrevolution.