The Supreme Court has agreed to hear Dobbs v. Jackson Women's Health Organization, a case involving Mississippi's 2018 ban on abortions after 15 weeks, setting the stage for a potentially far-reaching and disruptive change in the existing constitutional framework just months before the midterm elections. The decision to hear this case, about a law that is incontestably unconstitutional, is an ominous signal about the future of reproductive rights, and should serve as a wake-up call for complacent Democrats who have decided to just move on from the GOP's cynical, norm-busting takeover of the Supreme Court.
The narrow scope of the case involves Mississippi's "Gestational Age Act" that prohibits nearly all abortions after 15 weeks, one of a seemingly endless series of state laws designed as vehicles for asking the Supreme Court to overturn Roe v. Wade. The Roe framework prohibits states from restricting the right to terminate a pregnancy before viability — the age at which a fetus could survive outside of the womb, generally accepted to be between 23 and 24 weeks. Because even Mississippi's attorneys could not make a credible case that survival is possible at 15 weeks, the law was struck down by a federal district court judge in 2018 and then by the conservative-dominated 5th Circuit Court of Appeals in 2019.
Jessica Mason Pieklo cuts through the right-wing sophistry in describing why the Court would take this case. "None of the traditional markers for taking up a case exist" in the Mississippi case, she argues. Appellate courts have not rendered different verdicts on similar cases, as was the case when the Court took up same sex marriage in Obergefell v. Hodges. The case does not raise novel issues of constitutional law. "The only thing that exists is the political will of the Court's conservatives to strike on abortion rights now."
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Remember that the lower court rulings striking down Mississippi's law would have stood had the Supreme Court simply passed on this case. Therefore the only reason to take it is if at least four justices (the minimum number required for the Supreme Court to hear a case) intend to toss Roe's viability framework out the window and unleash a flurry of what would effectively be total bans on abortion in every GOP-controlled state in the country. And when Amy Coney Barrett, a lifelong anti-abortion zealot, was confirmed to the Supreme Court on the eve of the 2020 election, everyone knew that a Court with a newly minted, hard-right 6-3 majority would eventually do something like this.
Whether the Court will directly vacate Roe or, as Mason Pieklo predicts, simply gut it so thoroughly that it is effectively meaningless by allowing pre-viability bans remains to be seen. But sometime around June 2022, a Court that includes three justices appointed by a twice-impeached popular vote loser and confirmed by a Senate majority representing a distinct minority of the population is going to radically restrict the reproductive rights of tens of millions of Americans, in direct defiance of the stable majority which supports legal abortion in all or most circumstances. Many states already have "trigger laws" on the books that will ban abortion the minute that SCOTUS overturns Roe. The red states that don't won't be far behind.
This is, first and most importantly, an unprecedented attack on basic human rights as well as a looming public health catastrophe, which will force hundreds of thousands of people to carry unwanted pregnancies to term every year, and untold thousands of others to seek unsafe abortions that might kill them. The Court's conservatives will also, with a few strokes of a keyboard, condemn tens of millions of children to grow up in households that can't support them, in states governed by people who couldn't care less what happens to them after they fulfill God's will by being born.
It will be the doomsday scenario that reproductive rights activists have spent nearly 50 years trying to avoid, and the ultimate victory for religious hardliners who have waged a scorched-earth battle against Roe from the minute the decision came down, one that will further divide the two Americas into an archipelago of blue states where abortion remains legal and a Gileadean sea of red states where there is zero reproductive autonomy for anyone other than men.
Because the decision will almost certainly come down just as the midterm elections are kicking into high gear, it is going to trigger absolute political mayhem and ratchet the stakes up well beyond what the political system can currently bear. And given the high likelihood that these will be the last months before Republicans take over one or both chamber of Congress, Democrats must be prepared to pass a law that legalizes abortion under the Roe framework in all 50 states. There are obvious benefits to having reproductive rights enshrined in Constitutional law rather than statute, but unless Democrats choose to enlarge the Court (which is looking profoundly unlikely), legislation is the only path forward, possibly for a generation.
The Court's decision to recklessly plunge the country into this nightmare should be seen as a five-alarm fire by President Biden and congressional Democrats who seem mostly incapable of grasping the threat that this illegitimate Supreme Court poses to existing constitutional law and the future of the Democratic agenda. It was just eight months ago that Senate Republicans set aside the bogus election-year "rule" that they used to prevent former President Barack Obama from appointing Merrick Garland to the Court in 2016, so that they could jam Amy Coney Barrett through on a divisive party-line vote just weeks before the election.
That's twice in four years that Republicans have openly taunted Democrats with extremely consequential constitutional hardball, only for many Democrats to pledge not to pack the Court and then paralyze themselves and their legislative agenda for months waiting on Sens. Joe Manchin (D-W.Va.) and Kyrsten Sinema (D-Ariz.) to decide whether or not to nuke or reform the Senate's filibuster rule so that this once-in-a-decade Democratic trifecta can briefly govern the country. It's as if FDR responded to Pearl Harbor by preparing Hawaii for Japanese colonization and then pledging to adhere to previously existing international norms about bolt-out-the-blue sneak attacks.
If, as seems more likely with every passing day, Democrats held hostage by Manchin and Sinema do absolutely nothing about any of this, they will watch helplessly as the Supreme Court not only wipes away the basic human rights of millions, but also handcuffs the executive branch, forces concealed carry laws on all 50 states, upholds the most outrageous voter suppression laws you can imagine, ends affirmative action, further privileges corporations over human beings, torches what remains of U.S. labor law, hobbles the Affordable Care Act, drops whatever meager legislative scraps manage to make it out of this Congress and onto President Biden's desk into a garbage disposal and then, as its pièce de resistance, sides with the GOP in the almost-inevitable post-2024 election dispute and thereby wipes American democracy off the face of the planet.
That all seems worse to me than eliminating the filibuster, but then again I'm not a senator from West Virginia, so what do I know. What is indisputable is that the consequences of the Trumpian conquest of the judiciary are now coming into view, and reproductive rights are just the first of many precious things this ill-gotten Court is planning to destroy. Perhaps yesterday's inaugural meeting of Biden's Supreme Court Reform Commission will be the first step in the process of Democrats coming to terms with their predicament. But if they plan to do anything about it, the clock is very much ticking.
