A long, slow, incremental plan to send women to back alleys again
by digby
Food for thought from a great piece by Irin Carmen in Salon:
Here’s what’s important to know about the right’s plan for Roe: It will be slow, and it will be indirect — to avoid a backlash — but the inexorable goal is to overturn it and ban abortion wherever possible. With an eye toward the court’s oldest member, women’s rights pioneer Ruth Bader Ginsburg, antiabortion activists would be counting on a President Romney to appoint one or more justices who would upset the fragile 5-4 balance that currently maintains the federal right to an abortion. In the meantime, they’ve been working hard to lay the groundwork to get a case before the Court that would allow justices to revisit, and possibly overturn, Roe.
“The antiabortion groups are busy trying to fill the pipeline with cases that could present vehicles to revisit the abortion issue, either tangentially or frontally,” says Supreme Court expert and author Linda Greenhouse, who has written extensively about Roe. “And the pro-choice groups, on the other hand, are not appealing even adverse rulings, because they don’t want such a vehicle to get to the Court” — even the current, shakily pro-choice court. “Right now,” says Greenhouse, “we have a standoff.”
And yes, the Court could “return it to the states” which should satisfy all the states’ rightists. But it won’t. The next day the zealots would deploy their armies to start dismantling it in the states where it would remain legal. (Some states already have it banned on their books.)
The anti-abortion zealots have a plan. And they are patiently carrying it out. They may even have the majority on the court already that will overturn it. (Kennedy certainly seems to be concerned these days with dizzy broads being unable to make such momentous decisions without suffering a breakdown afterwards.)
Here’s what to keep you eye on:
The Trojan horse that worries prochoice legal scholars the most are the so-called “fetal pain” laws, which ban abortion at around 20 weeks, well before viability, on the scientifically-spurious, and currently constitutionally irrelevant, basis that a fetus experiences pain at that point. They’ve in seven states, including Indiana, Kansas and Nebraska. Like the Partial Birth Abortion Bans, these laws promise to put focus on rarer, but less politically palatable, later abortions.
After declining to take the anti-abortion bait in several states, CRR and the ACLU are challenging a version of the law in Arizona that effectively bans abortion at 18 weeks and has a very narrow health exception. (The Ninth Circuit agreed to enjoin the law and will hear the case next month.) The stated intention of the law’s defenders is for the Supreme Court to eventually take the case and totally reframe its approach to abortion rights to take into account what happens to the fetus before viability. But prochoice litigators are betting that the Supreme Court wouldn’t hear it. Says Smith, “It would be outrageous if they took it, because there’s no conflict in the circuits. It would be a hugely activist move.”
For now, all of these battles are being fought below the public radar in lower federal courts, where the ranks of liberal judges are thinner than they might be, thanks to Obama’s slowness in making nominations and the determined Republican opposition to those he does nominate. Judicial discretion is key here. The Casey decision held that a state could do anything but impose an “undue burden” on a woman who wants an abortion, but as Northup puts it, “What an undue burden is is very much in the eye of the judge that’s hearing the case.”
Ah, who needs liberal judges anyway?
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