With a basic understanding of the constitutional landscape in hand, we can now move on to explore what the future might hold. In Part 3, we hypothesize that America’s Number 2 fills only the Garland seat during his smash-and-grab reign of terror. What is that likely to mean for the law of reproductive freedom? The answer is: hopefully, not much.
As things stand today, the United States Supreme Court is evenly divided between the four conservatives (Chief Justice Roberts, and Associate Justices Kennedy, Thomas, and Alito) and the four progressives (Associate Justices Ginsburg, Breyer, Sotomayor, and Kagan). But we mentioned in Part 2 that on the question of reproductive freedom, this means the Court is split 5 to 3 because Justice Kennedy, at least when it has mattered most (see, e.g., Planned Parenthood v. Casey; Whole Woman’s Health v. Hellerstedt), has joined with the four progressive votes. So even if Trump makes good on his promise to appoint to the federal courts only Federalist Society-approved right-wing drones, on the basic question of whether the Constitution offers some form of substantive protection to a woman’s right to choose, the answer should remain ‘yes’ by a vote of 5 to 4.
We’ve chosen our words carefully (e.g., “when it has mattered most,” “some form of substantive protection”) for reasons that those who’ve followed this issue closely over the years will understand. Casey’s ‘undue burden’ standard was – and still is – easily manipulated. Despite his seeming commitment to a baseline safeguard for reproductive freedom, Justice Kennedy has, at times, been – well, he’s been Justice Kennedy. Which means that while his heart is often in the right place, he does, at times, try the Chimps’ patience mightily. Finally, while Whole Woman’s Health was a pretty clear shot across the bow of the misogynists and forced birthers, it’s also obvious that Trump’s election has emboldened them beyond their wildest dreams. It’s simply too soon to know whether Whole Woman’s Health will serve as an effective firewall against further encroachments, or will wither and die as a one-off, momentary setback for targeted regulation of abortion provider (TRAP) regulations.
In the Trumpocalypse that will soon descend upon us, this is really the best outcome we can hope for. It means that reproductive freedom probably won’t become substantially less secure than it is right now. That’s the good news, such as it is. The bad news is we can expect the GOP to continue its relentless assault, as it has for the past four decades. The goal, as we’ll explain in more detail in Part 4, has been to chip away at reproductive freedom by continuing to expand the list of burdens that courts are willing to tolerate. It’s been an effective strategy, especially when played out over the long term. Here’s an illustration that helps to explain why.
Gov. John Kasich (R-OH) recently signed into law a state bill that generally bans all abortions after 20-weeks’ gestation. At the same time, he vetoed a so-called ‘fetal heartbeat’ bill that effectively would have banned abortion after roughly six or seven weeks’ gestation. Upon a faithful application of Casey and Whole Woman’s Health, both of these laws should be unconstitutional. Why? Because while states are free to reasonably regulate abortion pre-viability in order to safeguard maternal health and prenatal life, they can only impose a ban on abortion at the point of viability, which is typically around 23 to 24 weeks’ gestation. Ohio lawmakers want to chip away at that viability rule, and the best way to do that is incrementally. Moving the ban ahead by three or four weeks, the argument would go, isn’t that big an interference with the woman’s right to choose. It’s consistent, they would claim, with Ohio’s interest in protecting prenatal life, and certainly is nothing that would amount to an undue burden.
Juxtaposing all this against the facially-frivolous ‘fetal heartbeat’ bill is an interesting rhetorical exercise of sorts, and the Chimps think it served two purposes. First, passing the ‘fetal heartbeat’ law and sending it to Kasich for signature allowed legislators to pander to the most extreme wing of the forced-birth contingent, which helps at election time. Second, an extreme measure like that helps to normalize the 20-week ban, which looks far more reasonable and less burdensome in comparison.
These are the kinds of battles that reproductive freedom advocates have been fighting for decades. And they’re the battles we’ll continue to fight for the foreseeable future, unless America’s Number 2 makes more than a single Supreme Court appointment. That’s the scenario we’ll take up next, beginning with Part 4.