Republican-led states have been whittling away at the right to choose since the Supreme Court technically reaffirmed that right in a case called Planned Parenthood v. Casey in 1992. Casey upheld that core concept of Roe v. Wade—that women had a right to privacy over their reproductive choices—but invented a new standard that allowed states to severely restrict women’s options and autonomy over their own bodies. Over the past 27 years, Republican legislators and judges have carefully, almost surgically, turned abortions into a service that is technically legal but functionally unavailable in many of the states they control.
That is what was happening before Supreme Court Justice Anthony Kennedy was replaced by Brett Kavanaugh. Now that the Republicans have successfully forced an alleged attempted rapist onto the Supreme Court, the surgical approach has been discarded. In its place, red states have adopted a sneering, combative attack on women’s rights befitting the man they hope will support them. It’s not a coincidence that the Alabama legislature passed a bill forcing rape victims to serve as unwilling incubators only now that a man accused of attempted rape sits on the high court. Kavanaugh’s personal controversy has always been a feature, not a bug, for these terrible people.
The hubris of Alabama, and Georgia—which passed the most restrictive “fetal heartbeat” abortion ban in the country before Alabama went all “hold my beer” on the issue—might backfire. These states think they’re laying a trap for Roe: Lower courts will likely overturn these laws, leaving the Supreme Court to reanimate them and overturn Roe v. Wade in the process. But because of the excesses of these laws, progressives really only have one option: Spring the trap, and fight to the death for the rights of women.
Roe, in spirit, has already been defeated in vast parts of the country. Roe does not guarantee access to an abortion to anybody if there are enough Republicans in their state legislature, and it hasn’t for some time. It is a shell that has been systemically hollowed out on the inside. Smart Republicans like keeping Roe around because they know it works as an effective boogeyman that keeps some segment of their Bible-thumping base voting against their own interests. Meanwhile, even though 67 percent of the country (including 73 percent of independents and a whopping 81 percent of Democrats) don’t want to see Roe “overturned,” as long as Roe is not “overturned,” they seem to think the right to choose is more or less secure. Roe gives false hope to its supporters—not all, but enough—and inspires committed activism from its enemies.
The preferred Republican attack plan has always been to keep Roe as “good law,” but allow the states to vitiate the right to choose out of existence. Rich white women will still be able to fly to Los Angeles or New York or London to get an abortion when they need to. Even if a state only has one functional abortion doctor, rich people will find a way. GOP sugar daddies will still be able to coerce abortions when they want to. Republicans will still have an issue to prattle on about when the usual inducements, tax breaks, and bigotry fail to churn up enough votes. And suburban women outside of Philadelphia will not go to the mattresses to protect a black woman’s access to health services in Alabama.
The important thing to understand is that the Republican plan was working, brilliantly (or tragically, depending on whether or not you think women are people). Republicans were destroying the functional right to choose, without the overwhelming majority of people who support that right much noticing.
But now, engorged by Kavanaugh, Alabama and Georgia have opted for a full “LeeRoy Jenkins” strategy. They’ve abandoned the cautious strategy favored by national Republicans and instead are taking direct shots at Roe.
That overreach might be the only chance to win.
I don’t know if there are five votes on the Supreme Court to overturn Roe outright, but we’re about to find out. The Georgia law outlaws abortions pretty much once the woman reliably knows she’s pregnant; the Alabama law outlaws them once a woman is pregnant whether they know it or not. They are incompatible with Roe’s protection of the women’s privacy, and a clear “undue burden” according to Casey. Conservative justices will have a hard time parsing this language: Either these laws are unconstitutional, or Roe is overruled.
There are likely four votes to overturn Roe outright: Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh. Chief Justice John Roberts does not favor abortion or women’s rights, but he does like to think of himself as an institutionalist. Roe is settled precedent, and overruling it simply because he can might be difficult for him.
These Republican states think they’re trapping Roe. In fact, they’ve only succeeded in putting Roberts in a corner. Who knows how he’ll react. Being the judge that ignored precedent in order to take away women’s rights is a hell of a legacy to live down.
If he does overturn Roe, Roberts will be counting on Democrats to not make too much of a fuss about it—the kind of fuss that would threaten the very legitimacy of the Supreme Court. Republicans are always counting on Democrats to shy away from the abortion issue. They’re counting on Democrats to do everything they can to avoid talking about Roe v. Wade during an election year, even as it’s decimated, under the “big tent” theory that evidently requires being cool with selling out women if the senator from West Virginia has a “D” after his name.
Democrats must resist their natural inclination to be bumfuzzled. The Alabama and Georgia laws are draconian and designed to be cruel. They will be massively unpopular, outside of the minority of Republicans who want the very worst things. “Democrats” who can’t get on board with fighting for basic women’s health services even when those rights are directly under attack don’t belong in the stupid tent.
For the real Democrats, this is the hill we fight on. This is the hill we die on, if it comes to it.
Republicans have shown that there is no more room for compromise. Democrats must see that there is no more room for retreat. Every single vote for a Republican at the local, state, or national level is a vote to reduce born women to the status of medical incubators with mouthparts. Democrats who are unwilling to make the case need to get out of the way and make room for a woman who can.
Republicans have ripped off their own masks. They don’t care about the health of the mother. They don’t care about victims of rape or incest. They don’t even care about the “unborn,” as evidenced by their stubborn refusal to provide nationalized and free prenatal care. All they care about is controlling women’s bodies. Limiting reproductive choice is a way to control women, that’s all they’re in it for.
For too long, Democrats have shrunk from this challenge, especially male Democrats who are generally totally up for controlling some women if it helps them get ahead. They’ve hidden behind the ever-changing science of “viability”; they’ve hidden behind legal philosophies of “secularism”; they’ve punted issues to the courts while doing nothing to secure the courts against the encroachment of religious fundamentalists. As recently as 2016, Democrats ran a VP candidate whose gobbledygook answer on abortion was something like, “Eww, gross, I wish they didn’t happen but I’m not a girl, praise Jesus, so I just follow the law.”
That can’t happen anymore. The dystopian future Republicans have been working toward is nearly upon us, forcing their choices upon our most intimate decisions. Instead of merely defending Roe, we must attack these forces. For that to happen, it can’t just be Planned Parenthood and NARAL sounding the alarm bells. It can’t just be a “women’s issue.” A majority of Americans support the right to choose. For that right to still be a thing, we’re going to need all of them to vote like it.
Republicans and their judges are coming for women’s rights now. Not tomorrow, not theoretically, not only in red states, but now and everywhere and for real.
Republicans are confident that their side is more motivated about this issue than the majority of us. We must prove them wrong. As Doctor Strange might say, it’s the only way we’ll win this one.