Elections have consequences. Some of those consequences are immediate; others aren’t. If you’re an undocumented immigrant in the United States, the election of Donald Trump could mean that you will be ripped away from your family and your home at any time after Trump’s inauguration. We think the election of Donald Trump also might spell (we’re tempted to say probably spells) the end of a woman’s constitutional right to make her own reproductive choices free from interference by the theocrat-state. But that is not going to be an immediate consequence, and it will require the cooperation of one of the Supreme Court’s octogenarian (or soon-to-be octogenarian) justices. As long as the notorious RBG keeps eating her Wheaties, this could take some time.
Ohio’s Republican-controlled legislature has enacted legislation that would ban all abortions after around the sixth week of pregnancy (when a fetal heartbeat could be detected) without any exceptions for rape or incest. It’s a bit of a morose move by Ohio legislators, who by adopting this legislation have clearly signaled their breathless anticipation that the Grim Reaper has a date with at least one justice in the hopper; so-called “good Christians” are circling above Ruth Bader Ginsburg, Anthony Kennedy, and Stephen Breyer as though their corporeal vessels were already carcasses.
Here’s what we mean. As it stands now, Ohio’s proposal (which awaits a decision by Governor John Kasich whether to sign it) is baldly unconstitutional. Six weeks is so early in the pregnancy that a woman often doesn’t even know she’s pregnant yet. As of this year, the controlling Supreme Court case as to a woman’s right to choose is Whole Woman’s Health v Hellerstedt. In that case, the Court reaffirmed that a woman has a constitutional right to terminate a pregnancy as a component of the liberty guaranteed to us under the Constitution’s two Due Process Clauses.
As with most rights, this one is not without its limits (those who run around expounding on Roe v Wade’s purported license of “abortions on demand” are making a hysterical political point, not a rational legal one). Under Whole Woman’s Health (and other cases like Casey v Planned Parenthood of Pennsylvania), the government may impose reasonable medical and health-related restrictions on abortion procedures.
But a state may not altogether ban abortions unless such a ban applies only to post-viability procedures. The point of fetal viability is the point at which a fetus could survive outside the womb on its own without extraordinary medical intervention. And even if a ban applies only post-viability, it must contain an exception where an abortion procedure is necessary to preserve the health of the mother (the Ohio legislation does appear to have such an exception built into it).
Now, The Chimps are not medical professionals, and we’ll leave it to professionals to peg the exact point of viability, but as we understand it, viability isn’t likely before at least the 22nd or 23rd week of pregnancy. So a complete ban on abortions after the sixth week of pregnancy is not just unconstitutional – it’s preposterous under existing precedent.
Ah yes, existing precedent. It’s been reported that a leading Republican proponent of this new law, Keith Faber, said the election of Donald Trump has given anti-choice advocates new hope: “A new president, new Supreme Court appointees change the dynamic …” How so?
Well, for one thing, Trump’s win means the end of any chance that Merrick Garland will replace the deceased Antonin Scalia. Trump owes his Republican base ideological purists as Supreme Court appointees, so expect Scalia to be replaced by another Scalia (which is to say, a rather rabid social conservative on issues like abortion and LGBT rights). But if Ohio Republicans are thinking that getting a right-winger on the Court with Trump’s first appointment will mean the success of their draconian new law, then they can’t do math (and The Laughing Chimps believe that these Republicans actually can do math).
That’s because Whole Woman’s Health, with Anthony Kennedy siding with the Court’s liberal justices, was a 5-3 decision. So a new Scalia would only bring the vote on such issues to 5-4.
But Republicans have been poring over those actuarial tables. The average life expectancy for an American female is around 81 years; for males, it’s around 76. Ginsburg is 82; Kennedy is 80; Breyer is 78. Unless those three can hold on to their bodies and their minds for another 4 years, Whole Woman’s Health (and Casey, and Roe v Wade) will see serious erosion, if not extinction. The vultures, they are a-circlin’.