This is the first post in a Laughing Chimps series entitled “Reproductive Health & Freedom.” Our overarching goals are twofold. First, we want to let you know where federal law on the subject of reproductive health and freedom stands today. That post will follow as Part 2. Second, we want to give you some ideas as to what the future might hold, depending upon what happens with the United States Supreme Court.
The future of reproductive health and freedom will turn, in large part, upon how many appointments to the Supreme Court Donald Trump gets to make. We know Melonhead will make at least one, to the seat vacated by the late Justice Scalia’s death. Or as the Chimps prefer to call it, the ‘Garland seat.’ A single Trump appointment is the best we can hope for, because it is not likely to change the balance of the Court significantly. In that case, reproductive freedom will, for the time being, remain no less insecure than it is today, subject to ongoing attacks at both the federal and state levels. We’ll have a look at this in Part 3.
Part 4 begins our look at the worse-case scenarios, meaning those that might follow if Trump gets to name two or more Justices to the Court. The first possibility here is what we call the ‘Chief Justice Roberts strategy.’ The Chief Justice pretends to favor making only incremental changes to the law, but in fact his version of incrementalism often masks radical, sweeping change. On this approach, the Court would pretend to leave existing law substantially intact while actually weakening it to such a degree that it becomes a hollow, empty shell offering little real protection.
In Part 5, we examine the outcome (one of them, anyway) that Donald Trump has claimed to favor: a declaration that the federal Constitution simply offers no substantive protection for reproductive freedom. The legality of abortion becomes a question that returns to the states, with each state more-or-less free to allow as much or as little protection as it sees fit. The effect would be to roll the clock back 50 or more years, a result that is, sadly, consistent with much of the GOP agenda.
What happens if, in the wake of the result described in Part 5, a GOP-controlled Congress decides to follow up with federal legislation that further curtails reproductive freedom? Part 6 previews a couple of possibilities. The first is a federal law, one that may or may not preempt state reproductive freedom laws, grounded in Congress’ commerce power. The second is a law that seeks to curtail state reproductive freedom laws based on Congress’ spending power. Depending on length, we may split this post up into a couple of bite-sized pieces.
Finally, Part 7 takes up what the Chimps call the ‘doomsday scenario.’ As in Part 5, the Supreme Court declares that the federal Constitution doesn’t protect reproductive rights. But the Court doesn’t stop there. It also rules that the unborn product of conception – at whatever stage of development the Court chooses – enjoys constitutional ‘person’ status, at least within the meaning of the 5th and 14th Amendment Due Process Clauses. This would mean that it could not be deprived of life, liberty, or property without due process of law. The practical effect of such a tectonic shift in the law would be to outlaw abortion in nearly all cases.
A couple of closing notes. First, we understand that “reproductive health and freedom” can be understood to entail much more than abortion. Contraception, cancer and STI screenings, and other health care could – and really should – be included. Considerations of length and time dictate that we not include those topics in this series. Our omission of them shouldn’t be understood to mean that we think they’re not important.
Second, and for the same reasons, we’re limiting our discussions in this series to matters of federal constitutional law. We will not address important questions that may be raised under state constitutions or other state laws. The best we can do is to note that under some of the scenarios we address, state law may play a significant role. Should you find yourself in the crosshairs of this particular Trumpocalypse, the Chimps encourage you to seek competent local counsel.
Stay tuned for Part 2, coming shortly.