Perhaps it is too early to discern exactly what the Supreme Court order in Whole Women’s Health v. Jackson, wherein a majority of the Court passed up a chance to invalidate a blatantly unconstitutional Texas abortion law, will ultimately mean. But whether it represents a stealth reversal of Roe v. Wade and Planned Parenthood v. Casey or simply a procedural maneuver that allows a ban on early-term abortions to stand for a while, there is no question it represents a victory for the anti-abortion movement — huge or merely large.
By the contempt the majority implicitly expressed for the constitutional rights of the women affected by the law — which mobilized vigilantes to harass abortion providers and “abetters” — it’s plain that the right to an abortion as we have known it will not survive this Court’s consideration of Dobbs v. Jackson Women’s Health Organization in the next term. In accepting this case, the Court made it know they would specifically address the latter-day constitutionality of pre-viability abortions. Now it seems more likely than ever that the Court will take a claw hammer rather than a scalpel to existing precedents when the term begins next month.
It’s important to note that three of the five Justices backing the order greenlighting the Texas law were appointed by Donald J. Trump. One of them, Neil Gorsuch, occupies the seat stolen from Barack Obama by Mitch McConnell’s unwillingness to allow Merrick Garland so much as a confirmation hearing after Antonin Scalia died. The fifth and deciding vote came from Trump’s final nominee Amy Coney Barrett, whose avid support from anti-abortion activists and conservative culture warriors was unmistakable. No wonder they have so conspicuously swallowed their reservations about the 45th president. He has delivered for them.
That’s a big deal, because for decades anti-abortion folk felt betrayed by Republican presidents who had earned the bulk of — and now, the entirety of — their support.
Five of the seven Justices that struck down abortion laws in 1973’s Roe v. Wade decision were appointed by Republicans Dwight D. Eisenhower and Richard Nixon. Gerald Ford’s only SCOTUS nominee was John Paul Stevens, long a pro-choice stalwart on the Court. Noted Friend of the Movement Ronald Reagan put two important defenders of abortion rights, Sandra Day O’Connor and Anthony Kennedy, in the position to become two of the five Republican appointees who saved the right to choose in 1992’s Planned Parenthood v. Casey. Another was George H.W. Bush appointee David Souter. Anger over that “mistake” led Poppy to over-correct by putting the constitutional radical Clarence Thomas — another of the five stalwarts who supported the Texas order — on the Court. And while George W. Bush, under enormous pressure not to get this decision wrong, appointed the fifth member of the current radical majority, Samuel Alito, he also appointed Chief Justice John Roberts, who dissented in Whole Women’s Health v. Jackson, and has been notoriously unreliable for various conservative causes.
This long history of Republican perfidy on abortion has contributed a great deal to the strict ideological vetting now imposed on GOP presidents in the selection of federal judges generally and Supreme Court Justices in particular. Trump shrewdly exploited this mistrust by giving anti-abortion activists unusual delegated power over his judicial appointments. He didn’t care about the tradition of judicial independence from presidents and ideologues, and neither did they. And the deal worked for all concerned.
In the wake of the Supreme Court order smiling upon the Texas law that was very much the work of the anti-abortion movement in that state (particularly the devious vigilante enforcement provisions that were largely the brain child of Right to Life of East Texas leader Mark Lee Dickson), activists have been relatively quiet. It appears they are consciously echoing the calm, nothing-to-see-here rhetoric of the Court majority itself, which has every reason to lull pro-choice Americans into renewed complacency even as it buries the idea of a 50-state federally guaranteed constitutional right to an abortion.
But anti-abortion activists are people who have long practiced the art of hiding their light under a bushel. For years they have pretended their main purpose in political life was to stop the handful of late-term abortions (most of them involving horrendous maternal health risks) performed each year, even as they nourished plans to ban all abortions and even some methods of contraception. What seems to be on tap in the Supreme Court and in Republican-controlled states will certainly gratify them and likely increase their radicalism. But that’s just a bit down the road. And perhaps after years of disappointment, they cannot quite believe that great gettin’-up morning is finally dawning.
