The Supreme Court was eager to revoke reproductive rights in Dobbs v. Jackson Women’s Health Organization in part so that Republican governors and legislatures would be free to come up with ever-more-draconian methods to force pregnant people to give birth against their will. Red states have answered the call and passed laws that treat pregnant people as second-class citizens, depriving them not just of bodily autonomy but also access to life-saving medical care. To call it a “race to the bottom” undersells the depths to which theocratic state governments are willing to sink to in their zeal to control women and girls.
One such state is Wyoming, which recently passed the “Life is a Human Right Act,” one of the most extensive abortion bans in the country to date. (“Life” in this case doesn’t refer to the mother, of course, but the zygote inside of her leaching nutrients out of her body. And “a human right” refers only to that zygote’s time in the womb—the second it’s born, the fundamentalist Christians who claim to care so much about its humanity will suddenly find a reason not to provide it with a clean environment, a decent education, or even a school lunch.) The law, which was supposed to go into effect last weekend, bans abortions in almost all cases except for rape or incest (which, according to the Associated Press, have to be reported to the police to be deemed as valid) or to save the life of the mother. It calls for criminal penalties of up to five years in prison or a $20,000 fine for people who violate it. (Wyoming Governor Mark Gordon also signed a separate measure banning abortion pills in the state.)
But on Wednesday, the Wyoming ban was temporarily blocked by District Court Judge Melissa Owens. The reason? Conservatives in Wyoming pushed through a state constitutional amendment in 2012 that guarantees a right to “health care access.” The amendment reads: “Each competent adult shall have the right to make his or her own health care decisions.” It’s a clause Republicans added because they didn’t like… the Affordable Care Act. Indeed, law professor Quinn Yeargain reports that the ballot measure passed by Wyoming voters in 2012 to amend the Constitution was sold as necessary to prevent “undue governmental infringement” on health care decisions.
A similar story is playing out in Ohio. Voters there also strengthened state constitutional protections for health care access in response to the ACA, and a judge has temporarily blocked Ohio’s abortion ban because of the constitutional provision.
That’s right: Republican fearmongering about “death panels” and “big government” coming to take away people’s health care (which was never true) inspired Republicans to put in anti-Obamacare amendments (that they never needed) that are now thwarting Republican attempts to actually take away people’s health care. It’s an irony so delicious I hope Alanis Morissette writes a song about it.
Republicans have predictably countered by saying that abortion is not health care. They want to define abortion as “killing a baby,” because that definition has always served them well with their theocratic base who think laws should be based on the Roman Emperor Constantine’s interpretation of early Christian bedtime stories.
But taking abortion out of the health care space is in contrast to (wait for it) the Republicans’ own definition of abortion when they were busy trying to restrict access to it while Roe v. Wade was good law. Republicans spent decades attacking abortion rights by requiring that the doctors who performed them have admitting rights at local hospitals (and then denying them those privileges), allegedly out of concern for the “health and safety” of the patient. In short, it’s been the Republicans and their forced-birth allies who have strengthened the idea that abortions are medical procedures that must be provided under the full care of an accredited hospital. To call abortion anything other than health care fails the Republicans’ own theory of regulation.
Now, usually, pointing out Republican hypocrisy is useless. Republicans don’t care that they’re hypocrites because they have six votes on the Supreme Court who will endorse their hypocrisy. These are the people who think the government should regulate uteruses, but not assault rifles. Logic is not their strong suit.
But these legal challenges to state abortion bans might just hold up in front of the conservative Supreme Court because they are deeply rooted in what scholars call “textualism.” At its core, textualism is just a method of interpretation that places a high value on reading the words of a Constitution or statute as they would be plainly understood by the people who wrote them down. It’s not really as simple as it sounds (tell me what Moses meant when he said, “Thou shalt not covet”… I’ll wait), and hewing too closely to textualism invariably ends up with law professors debating about the intent behind commas as they try to tell us which weapons mass murderers can buy to shoot up a school. But we know that there is at least one conservative Supreme Court justice who will follow textualism straight to the gates of hell: Neil Gorsuch.
Most of the time, Gorsuch’s textualism means that women and minorities get no rights, because the white people who wrote the Constitution did not provide any. But sometimes, Gorsuch’s textualism leads him in other directions. Gorsuch is perhaps the strongest conservative defender of Native American rights, ever, because he reads old treaties at face value. In Bostock v. Clayton County, Gorsuch surprised many when he concluded that the 1964 Civil Rights Act does apply to the LGBTQ community because his textualist reading of the word “sex” included people with different sexual orientations or gender identities. Gorsuch is a functional nihilist who wants to bring about the destruction of the administrative state, but he has a code that he follows.
Gorsuch plus the three liberals on the court (I nominate Sonia Sotomayor to write an opinion that starts with: “Play stupid games, win stupid prizes”) only gets to four votes on the Supreme Court, but I could see one or two of the other conservatives coming along for the hyper-textualist ride here. Again, defining abortion as something other than health care is a legal stretch, and these state Constitutions explicitly defended access to health care based on their choices.
Unfortunately, there are plenty of other ways for states like Wyoming and Ohio to functionally ban abortions without running afoul of their own state Constitutions. Bans that limit access to reproductive health care to only a few weeks after conception will certainly be upheld by the conservative Supreme Court. Bans on abortion pills like the one Wyoming also passed will most likely be upheld by this Supreme Court. And I imagine this court will also uphold criminal penalties for pregnant people who violate those laws.
But in the states that overreacted to Obamacare, I don’t think total bans will hold up. The worst intentions of this decade’s Republicans are running up against the worst intentions of last decade’s Republicans.