Roe v. Wade A Catch-22 For Republicans

In 2016, Indiana governor Mike Pence signed a law which in part

banned abortions if the doctor “knows that the pregnant woman is seeking” an abortion “solely” because of the fetus’ sex, race, disability or a handful of other protected traits. As a federal appeals court explained, this law violates “well-established Supreme Court precedent holding that a woman may terminate her pregnancy prior to viability, and that the State may not prohibit a woman from exercising that right for any reason.” Nevertheless, it’s easy to see how a Supreme Court fight over this law could have launched a thousand bad faith attacks accusing abortion supporters of racial genocide.

That fight will not come. On Tuesday, the Supreme Court handed down a brief, unsigned opinion in Box v. Planned Parenthood, which announced that the court will not hear the challenge to Indiana’s ban on selective abortions. The practical effect of this decision is that the lower court’s decision striking down that ban will remain untouched.

Forced-birth advocates were buoyed by the elevation of Brett Kavanaugh to the US Supreme Court have passed punitive laws in recent months which they hope will land before the High Court. They

range from Mississippi, Ohio, and Georgia implementing bans on abortion after about 6 weeks, before many women even know they are pregnant, to Alabama passing a bill that would ban nearly all abortions in the state, with no exceptions for pregnancy in case of rape or incest, and make the procedure a felony that could land doctors (but not women) with jail time.

Once upon a time, forced-birthers could legitimately argue that overthrowing Roe v. Wade merely would return the issue of abortion to the states. However, that jig is up, now that, as abortion-rights activist Robin Marty explains

If Roe is overturned, abortion will be a criminal offense in at least 15 states where there is either already a trigger law waiting to put a total abortion ban in place automatically or where the state has signaled a desire to do so once Roe is gone.

Since that controversial court decision in 1973, most Americans generally have thought of abortion as being legal throughout the USA, notwithstanding restrictive laws in some states.  However, if the landmark ruling is overturned, there will be a sharp reaction, energizing some pro-choice advocates and disabusing complacent women of the notion that their bodily autonomy is fairly secure from the state.  Americans generally believe there are too many abortions and support restrictions- but do not want Roe v. Wade overturned.

Alternatively, the Court may choose not to upend Roe. Evangelicals gave their wholehearted support to a candidate who embodies from 0-1 Christ-like virtue(s) but who promised to appoint anti-abortion rights judges to the Supreme Court. Mission accomplished. But if the addition of Brett Kavanaugh and Neil Gorsuch proves insufficient to overturn abortion rights (particularly if Kavanaugh goes rogue), voter enthusiasm among Republicans will take a big hit. President Trump will ultimately have failed to deliver.

This wouldn't be the first time in recent years that the Supreme Court will have played a major, even determining, role in a presidential election. In 2012, amid broad and deep GOP charges that Barack Obama exercised dictatorial powers by enacting the ACA, the Court ruled (5-4, in a decision written by Chief Justice Roberts) that "Obamacare" was not unconstitutional, hence deflating a prime Republican argument against the President.

Pro-choice activist Robin Marty here explains why rescinding Roe v. Wade might end up benefiting abortion rights activists, albeit with a  significant short-term cost to women.  Moreover, the next round of elections arrives in barely 17 months and a political landscape without Roe protections is one in which Donald J. Trump and more than a few other Republicans would find very inconvenient. It is a car they do not want to catch up with.

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