I don’t have a lot of comforting words to offer y’all re: the Alabama abortion bill passed by its legislature yesterday, which makes providing an abortion punishable by up to 99 years in prison (the bill is awaiting the governor’s signature, but the governor is not just a Republican, but an Alabama Republican). There is no exception, either, in the case of incest or rape, thanks to 22 white men who made that decision. But you really don’t have to worry about that, says Republican Senator Clyde Chambliss, who argued that the ban was still fair to victims of rape and incest because those women would still be allowed to get an abortion “until she knows she’s pregnant.”
What does that even mean?
It’s the same with the Georgia heartbeat bill, which goes into effect in Georgia in 2020. But the reality in both cases is that these laws are being passed for one reason only: To ensure a challenge to Roe v. Wade in the Supreme Court. And at least one of these two laws are bound to make their way up to the highest court in the land (if I’m an anti-choicer, I’d go with the Heartbeat Bill, because lawyers may be able to strike down the Alabama bill on Eighth Amendment cruel and unusual grounds).
In the meantime, neither of these bills is likely to survive the lower courts, so they’ll be set aside at least until the Supreme Court makes a decision, and there, the fate of Roe v. Wade is probably going to come down to one man: John Roberts. Bad news: He’s a white, male Catholic. Goddamnit. The good news? He seems to respect stare decisis. In a dissenting opinion in another unrelated case earlier this week, liberal Justice Stephen Breyer seemed to be trying to appeal to Roberts’ respect for precedent in writing:
“Overruling a case always requires special justification. What could that justification be in this case? I understand that, because opportunities to correct old errors are rare, judges may be tempted to seize every opportunity to overrule cases they believe to have been wrongly decided. But the law can retain the necessary stability only if this court resists that temptation, overruling prior precedent only when the circumstances demand it.”
Breyer also cited Casey vs. Planned Parenthood in that dissent, which seemed to be a sort of warning to Roberts and other conservative members to leave precedent alone. I’m not sure how well that’s going to go, because the conservative justices believe that Roe was decided wrongly. It’ll likely be up to Roberts to weigh his belief that Roe was decided wrongly against the Supreme Court precedent and the will of the people, two-thirds of which still believe that abortion should be legal.
How’s that going to go? I have no idea. My hunch is that Roberts will side with the liberal justices on the Alabama and Georgia laws, but he’d likely side with conservatives on a less restrictive measure that doesn’t completely overrule Roe but that limits the hell out of it, like a 12-week abortion ban.
We’ll see. If you live in a red state, though, I’d be very worried about one’s ability to obtain an abortion. And I have these horrible visions of a not-too-distant future in which Roe is overturned, abortions are made illegal, it becomes all very normalized, and Disney makes a mainstream movie celebrating the underdog Brett Kavanaugh overcoming “false allegations” to win confirmation and become the American hero who overturned Roe. I’ve seen too many episodes of The Man in the High Castle and lived under the Trump administration too long not to believe that all of this bullshit not only eventually becomes normalized but celebrated. Man in the High Castle is a very bad show, but I often think back to a scene in it in which citizens of Nazi-occupied America celebrate the destruction of the Statue of Liberty, only 15 years after we lost the war in this alternative history. That’s how quickly it can happen, and that’s our future, I fear, if Donald Trump wins another term.