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Conservative judges, at least the kind of devoted anti-choice activists Donald Trump has nominated, would outlaw abortion rights outright, if they could. They’re waiting for the right case, and maybe the right death on the Supreme Court, in order to do just that. But in the meantime, the goal of these judges is to restrict access to abortion services to the point where women cannot practice their constitutional rights to control their own bodies, even as those rights still theoretically exist.
And these judges, and their Republican confederates, are certainly not about to let a good crisis go to waste.
Within the last few weeks, the governors of Texas, Ohio, Iowa, and Alabama—Republicans all—have taken advantage of the coronavirus pandemic to issue orders further restricting the rights of women. Their excuse? Abortions are “elective” medical procedures and therefore have to be put on hold alongside all the other elective procedures that are being suspended during the crisis. As if a woman’s right to her body is akin to getting a nose job.
We know that excuse is a farce. Many states have issued temporary bans on elective medical care without shutting down abortion clinics. Hell, New York and California, two of the states hardest hit by the coronavirus and in desperate need of the most basic medical supplies, have seen no need to ban abortions in the name of husbanding medical equipment. That might be because those states are not being run by governors looking to use a crisis to further their agenda in the culture wars. They’re not being run by Republicans acting in bad faith.
Unfortunately, not every state is lucky enough to be led by decent-minded officials. The full effect of these precedents, in the hands of Republican governors, could be devasting. If states are allowed to ban abortions because of a state of emergency, that’s a power Republicans will use again and again to shut down abortion providers.
Imagine the endless cycle of options. Is your state suffering from a hurricane, flood, or some other weather event? No abortion services until the emergency has passed. Has your state experienced an earthquake or forest fire? No abortion services until the crisis has subsided. Is there a temporary scarcity of some important medical supply or drug? No abortion services until the governor declares the scarcity over.
Governors declare states of emergencies for all sorts of things. Every one of those emergencies could be used as pretext to ban abortions, if the coronavirus restrictions stand.
These state emergency abortion bans should be unconstitutional. But this is where the long conservative effort to capture the federal courts is meant to pay off. The abortion bans in Texas, Ohio, and Alabama were initially struck down by District Court Judge Lee Yeakel. (The ACLU and Planned Parenthood filed a separate case in Iowa.) Yeakel is a George W. Bush appointee, but he was at least willing to follow precedent as established by Roe v. Wade and Planned Parenthood v. Casey. In his opinion, released Monday, he wrote: “Regarding a woman’s right to a pre-fetal-viability abortion, the Supreme Court has spoken clearly. There can be no outright ban on such a procedure.”
By Tuesday, though, the US Court of Appeals for the Fifth Circuit had overruled him. A three-judge panel—which included Judge Kyle Duncan, a longtime culture warrior who is one of the most fanatical judges appointed by Trump—ruled 2-1 to overturn Judge Yeakel’s ruling and reinstate the three abortion bans, pending a full hearing.
The judges asked for expedited briefing on this matter. They could issue a final ruling in a number of days, or weeks, or they could drag their feet for a couple of months until the pandemic has passed (whenever that is) and then decide that the issue is “moot,” meaning that there is no longer a “live controversy” for the courts to rule on.
The timing here matters a great deal, particularly for women living in the three states who find themselves in need of an abortion now. Ever since alleged attempted rapist Brett Kavanaugh was elevated to the Supreme Court, giving anti-abortion forces a solid conservative majority there, efforts to limit abortions—often by limiting the time frame during which women can get them—have gone into hyperdrive. Texas now effectively bans abortions prior to 20 weeks. Last year, Ohio passed a restrictive “fetal heartbeat” bill that effectively banned abortions at around six weeks; that bill has been temporarily blocked. Alabama tried to ban abortions altogether, but their law was also temporarily blocked. Both the Ohio and Alabama cases are still winding their way through the appellate system. Even while their fetal heartbeat laws are banned, Ohio and Alabama still effectively ban abortions after 22 weeks.
These restrictions and attempted restrictions on the timing of abortions, when linked up with the new attempts to ban abortions during states of emergency, could trap women in a Kafkaesque nightmare. Texas, Ohio, Alabama, and Iowa are trying to prevent women from getting abortions during the brief time in their pregnancies when the law allows them to, but when the pandemic has passed, the states will turn around and tell women that they’ve waited too long to get an abortion.
While the Fifth Circuit appeals court takes its time to mull over whether it wants to inflict these undue burdens, we can’t forget that the Republican-controlled Supreme Court looms off in the distance. That body might use this crisis to make new law restricting abortion access throughout the country, not just the region controlled by the Fifth Circuit. Even in his opinion stopping the abortion bans, District Judge Yeakel suggests what the Supreme Court could do with this case. He writes:
This court will not speculate on whether the Supreme Court included a silent “except-in-a-national-emergency clause” in its previous writings on the issue. Only the Supreme Court may restrict the breadth of its rulings. The court will not predict what the Supreme Court will do if this case reaches that Court.
That’s ominous. Judge Yeakel might not be willing to predict what the Supreme Court will do, but it’s not hard for the rest of us to see how the Supreme Court could use this case to further restrict a woman’s right to choose. A ruling that says, “You can have an abortion, unless Republican governors feel like the medical equipment could be better used elsewhere,” is not something I would put past this conservative Supreme Court. There are five Republican men on the court who don’t think women should have access to anything other than a coat hanger.
None of this should be surprising. The Republican party can be defined by its opposition to women’s rights to their own bodies. They use every legal tool or trick. They motivate their base with this issue. Of course, they’ll use a global pandemic that kills hundreds of thousands of people as an excuse to turn women into incubators. Their “concern” for the health and safety of humans ends the moment one leaves the birth canal, because living humans do not give them an opportunity to control women. And they’re proud of their general success at violating constitutional rights.
If Republicans succeed in using the coronavirus to kill off a few more abortion rights, some of them might just say the pandemic was worth it.