Going into the Trump presidency, we were all feeling fairly uncertain about the state of reproductive rights. My initial read on it, however, was that Roe vs. Wade would stand because of the Court’s deference to settled law but that it would continue to be chipped away at in red states, where they’re passing insane laws designed to discourage abortions, like compelling those who receive abortions to provide burials for the fetal tissues.
The Ohio state congress, however, has just made things much more complicated, and much more worrisome for pro-choice advocates. It has passed the Heartbeat Bill, which outlaws abortions after six weeks (with no exceptions for rape, incest, or chromosomal abnormalities, which can’t even be tested for until 12 weeks or so). Those of you who have had abortions or have been in relationships with people who have had them understand how completely absurd that six weeks is. Many women have no idea they are even pregnant at six weeks.
The bill awaits the signature of Governor John Kasich, and from what I understand about his position on abortion, he’s probably going to sign it, effectively outlawing abortion in Ohio. Even more concerning is that it will probably establish a blueprint for other red states.
Will those laws be challenged? Yes. That’s where it gets complicated, because while the Supreme Court may uphold Roe v. Wade, they could gut Planned Parenthood vs. Casey, which established that states could not place an “undue burden” on access to abortion. That “undue burden” has already been repeatedly chipped away at, and a Supreme Court with just two new appointments could erase it.
In other words, we’re relying on Justice Ginsburg (age 83), Justice Breyer (78), and Justice Kennedy (80) to remain on the bench for another four years, otherwise Casey is gone. More alarming, as The Washington Post points out today, is that without Casey, our federal Congress could pass laws restricting nationwide access to abortion similar to the one in Ohio.
That’s terrifying, and while the nuclear option that some are suggesting to get Merrick Garland on the Court before the swearing in of the next Congress is a ludicrous long shot, it may be our best hope at upholding access to abortion in this country aside from potentially propping up Justice Breyer Weekend at Bernie’s style to keep him on the Court until 2020.
Ginsburg, Breyer, Kennedy: Please exercise and eat right. We need you more than ever.