“WE WON,” read the heading on the e-mail from Women with a Vision, a queer Black women’s group based in Louisiana. “We Won!” cheered the New Orleans Abortion Fund. All day long, triumphant messages flitted across my screen—from the ACLU, the Center for Reproductive Rights, Vote ProChoice, Vote Mama, and many more. “We Are Shook,” was the headline from Rewire, the online reproductive justice news service. “SCOTUS just protected abortion access.”
Whew. June Medical Services v. Russo was the case that pro-choicers feared would devastate abortion rights in Louisiana and give the signal for open season on abortion around the nation. A win for the state would have meant upholding a law requiring abortion clinic doctors to have admitting privileges at a nearby hospital, something all but impossible to obtain; all but one of Louisiana’s three clinics would have been shuttered. The strange part is, in 2016, the court decided an identical case from Texas, Whole Woman’s Health v. Hellerstedt. That year, the court ruled 5 to 4 that the law served no health purpose but only made abortion harder to get. That the court would revisit the issue now that hard-line conservative Bret Kavanaugh has replaced moderate Anthony Kennedy seemed like a bad omen.
But surprise. John Roberts, who had voted to uphold the restriction in Whole Woman’s Health, voted against it this time—not because he has changed his mind about abortion restrictions (he has been opposed to abortion for his entire public career, and in his separate opinion wrote that Whole Woman’s Health was “wrongly decided”) but on the narrow ground of respecting precedent. Should a different restriction make its way to the court, one that hasn’t already been struck down, there’s nothing in Roberts’s opinion today that would require him to reject it. “Roberts’s opinion is less an endorsement of the right than it is a warning that litigants should not overreach,” writes Ian Millhiser in Vox.
“We’ll take our small victories where we’ve got them, even if they might be repealed tomorrow,” reproductive justice theorist and activist Loretta Ross told me when I reached her by phone. “There’s always a Sword of Damocles hanging over our head.” Too right. That’s why I’m breaking out the champagne, but only allowing myself one glass. The next case to come before the court—and there are several in the pipeline—might strike Roberts differently. He is the swing vote now.
Naturally, everyone is trying to get inside Roberts’s head. Is he trying to shore up the Supreme Court’s nonpartisan reputation, battered by nakedly pro-Republican decisions like Bush v. Gore, Citizens United, and Shelby County v. Holder (which gutted the Voting Rights Act and for which he wrote the majority decision)? Does he want to help Trump get reelected? Is he laying the groundwork for anti-abortion decisions down the road? Does he not want to go down in history as the man who overturned Casey, the 1992 decision that reaffirmed Roe and barred restrictions that placed an “undue burden” on a woman’s ability to get an abortion? Maybe a bit of all four.
I have a different question: How has it happened that the right of millions of women to decide whether and when to keep a pregnancy depends on one man—a man who actually doesn’t believe they should have that right? That 70 percent of Americans support Roe, that one in four women will have had an abortion by menopause, that countless women still living had illegal abortions before Roe, that legal abortion underwrites every aspect of modern women’s lives, and men’s lives too—none of that has the traction in our politics or our legal system that you would expect. Donald Trump was pro-choice before he ran for president, a fact that reassured a lot of naive people during the campaign, but he has done more to restrict access to birth control and abortion than any president in modern American history. In his three years and change, he has nominated Kavanaugh and Gorsuch to the Supreme Court, placed on the federal bench 200 judges, the most recent of whom, Cory Wilson, has called for a “complete and immediate reversal” of Roe, and seeded departments and agencies like Health and Human Services with anti-choice fanatics.
Little by little, like that proverbial frog relaxing in slowly heating water, we’ve gotten used to abortion being hard to find and hard to pay for. “Louisiana has three clinics that serve a million women of reproductive age,” the abortion sociologist Carole Joffe told me. In 1992 there were 17; in 2014 there were five.
Joffe’s eye-opening new book, Obstacle Course: The Everyday Struggle to Get an Abortion in America, co-authored with David Cohen, describes in minute detail the effect on real people of the more than 1,000 abortion restrictions passed since Roe was decided. Especially for poor and low-income women, who make up the majority of abortion patients, restrictions that might not seem so onerous to a better-off woman within reach of a clinic—a 36-hour waiting period, for example—can make for serious problems. Class and geographical disparities in abortion access are part of the reason anything short of a direct threat to Roe has often failed to excite a critical mass of pro-choice voters. “I worry that people who don’t obsess about abortion 24/7 will think, well okay, it’s safe,” Joffe told me. “I worry that the pro-choice movement will overstate the victory, and part of the electorate that would have been particularly motivated to vote won’t be so now.”
I worry about that too. So let me be clear: What we got on Monday was less a victory than a temporary reprieve. If Trump ekes out a win in November, Roberts may not be the swing vote for long. Trump will almost certainly get the chance to replace at least one and possibly more of the liberals of the Supreme Court with hard-liners like his previous nominees Gorsuch and Kavanaugh, and nominate enough federal judges to turn the appeals courts hard-right and anti-abortion for a generation or even longer. Perhaps Roe will be overturned outright; perhaps it will be allowed to remain the law of the land, while the court simply upholds every restriction that comes before it.
Pro-choicers have one chance to stop this. Let’s not waste it.