Roe is in real danger. Again.
As the GOP overruns state legislatures with a barrage of punitive voter suppression bills and legislation attacking transgender children, they also haven’t forgotten their favorite pet project: criminalizing abortion. Although Democrats won control over the legislative and executive branches of the federal government in 2020, Republicans didn’t slink away in defeat; they took over state and local governments.
This is the go-to legislative strategy for Republicans. Unfortunately, it’s proven to be highly successful. Many Americans aren’t aware that the vast majority of government decisions that directly impact your life don’t happen at the federal level; they happen at the state and local levels of government. Let’s take a look at some of the numbers. There are currently 361 voter suppression bills in forty-seven states, forty-four bills attacking transgender children in twenty-five states, and sixty-one bills restricting or criminalizing abortion.
Here’s why this strategy is so insidious and successful. First, the overwhelming number of bills makes it nearly impossible to challenge each one in court. Filing a legal challenge to a proposed bill or law is an arduous, time-consuming process, which often allows Republican legislators to enact a bill into law quickly and without legal impediment. However, if a law is challenged in court and ruled unconstitutional, Republicans can still appeal the decision and continue to file appeals until it reaches the Supreme Court. Keep in mind, Republicans have a six-three supermajority on the Supreme Court. Getting a case heard in front of such a blatantly partisan Supreme Court was the GOP’s ultimate goal.
We are watching this process play out in real-time with the legal challenge to Mississippi’s abortion law, which outlaws all abortions after fifteen weeks of gestation. Yesterday, it was announced that Supreme Court will hear this case. Instead of deferring to the lower courts, which ruled the law unconstitutional, the Supreme Court will “…consider whether any ban on abortion before a fetus is viable — that is, before it can survive outside of a person’s womb — is unconstitutional.”
The Supreme Court has the power to uphold the Mississippi law, strike down certain aspects of it, or rule the law unconstitutional. I don’t know what the outcome of this case will be, but I do know the Court’s decision to hear this case is a bad sign.
The primary role of the Supreme Court is to establish legal precedent. Roe v. Wade was decided in 1973. The central tenets of Roe were then reaffirmed in the 1992 case, Planned Parenthood v. Casey. The Supreme Court already ruled that abortion is a constitutionally protected medical procedure. That is the legal precedent. If the majority of justices on the Court agreed with the Roe precedent, then they wouldn’t have decided to hear this case.
By agreeing to hear the Mississippi case, the Court is signaling that they are willing to change the Roe precedent. Can this case alone overturn Roe? No. But it can put another nail in Roe’s coffin. If any part of the Mississippi law is upheld, we will continue to see an onslaught of legislation criminalizing abortion that could eventually outlaw it entirely.
The Republican Party has spent almost fifty years trying to criminalize abortion. With a conservative supermajority on the Court, there is a good possibility they’ll achieve this abhorrent goal. In 2019, I wrote an article explaining how a law enacted in Alabama, which criminalized nearly all abortions, was a deliberate play to challenge Roe in the Supreme Court. Two years later, this plan is coming to fruition.
This is why Mitch McConnell worked so hard to steal a Supreme Court seat from President Obama. This is why the entire Republican Party seemed to develop collective amnesia and forget their “rule” about not swearing in Supreme Court justices in an election year. The Supreme Court is an incredibly powerful arm of the federal government. A president can serve at most eight years. Congressional representatives don’t have term limits, but they must be reelected to stay in office. Whereas Supreme Court justices, once sworn into office, serve lifetime appointments. The decisions that the Court makes can directly impact the lives of Americans for generations.
Republicans know how influential the Supreme Court is. Taking over the Supreme Court was their number one priority. By controlling the judiciary, Republicans remain in power without even having to win an election. What makes this situation particularly distressing is that we don’t have that many tools at our disposal to combat the conservative supermajority on the Court. Supreme Court justices are not elected; they’re appointed by presidents, we can’t vote them out, and they serve lifetime appointments.
So do we just throw our hands up in the air and give up? Hell no. Democrats have to fight back. No option can be off the table. Republicans broke every rule to get their partisan hacks on the Court and Democrats must respond in kind. Increasing the number of Supreme Court justices or imposing term limits are not radical ideas. After all, McConnell single-handedly reduced the number of justices from nine to eight when he refused to confirm, Merrick Garland, President Obama’s Supreme Court nominee.
Democrats have a temporary window to modify the Supreme Court. Odds are, the Democratic Party will lose one or both chambers of Congress in 2022. There is an exigent need to rebalance the Court. If not, the Supreme Court could roll back the clock on sixty years of progressive legislation, and there won’t be anything we can do about it.
