Be Careful What You Wish For

The Supreme Court–newly dominated by a conservative majority–has accepted an abortion case out of Mississippi. It is widely expected that the Court will use that case to further erode a woman’s right to terminate a pregnancy–not explicitly overturning Roe v. Wade, but effectively eviscerating it.

Talking Points Memo considered the likely political effects of that decision, pointing out that, since the justices waited until the end of the current term to say that they would take it up, with a decision likely next June, it can hardly avoid being a front-burner issue in the 2022 election cycle.

Linda Greenhouse sees the decision to accept the case as the “end of the free ride” for anti-choice activists. She began that analysis by listing a number of situations in which state legislation curtailing abortion rights has been struck down by the courts, allowing “pro life” politicians to posture without incurring the electoral wrath of those who disagree.

Her recitation reminds me of a conversation I had with an Indiana legislator several years ago. He was in my graduate Law and Policy Class, and I knew he was aware of First Amendment precedents prohibiting state endorsement of religion, so when he voted to post the Ten Commandments on government buildings, I challenged him. His response was candid: he could vote the way the “folks in Mayberry” (his small town) wanted, keeping them happy, secure in the prospect that the courts would “bail him out.”

Abortion politics has taken a similar path.

Ever since the 2010 election ushered new Republican majorities into state legislatures, politicians there have been able to impose increasingly severe abortion restrictions without consequence, knowing that the lower courts would enjoin the laws before they took effect and save the people’s representatives from having to own their actions.

Greenhouse explains how the Court can effectively demolish Roe without actually and explicitly overruling it, and then considers the politics involved. Her analysis is worth quoting at some length:

It’s a dim memory, but a salient one, that in Mississippi itself, a voter referendum that would have amended the state Constitution to grant personhood status to a fertilized egg was defeated in 2011 by a margin of 58 to 41 percent, despite endorsement by leading politicians and widespread predictions that it would pass. That’s when the anti-abortion forces decided that friendly legislatures were a better bet than the will of the people.

Last fall, in each of four nationwide polls, including one conducted for Fox News, more than 60 percent of registered or likely voters said they did not want the Supreme Court to overturn “Roe v. Wade.” I put the case in quotes because that’s how the pollsters asked the question; although Roe obviously carries strong symbolic meaning, the 1973 decision is in many respects no longer the law.

The question as the polls’ respondents processed it was most likely “Do you want to keep the right to abortion?” And no wonder the answer was yes: nearly one American woman in four will have an abortion. (Catholic women get about one-quarter of all abortions, roughly in proportion to the Catholic share of the American population.) Decades of effort to drive abortion to the margins of medical practice have failed to dislodge it from the mainstream of women’s lives.

For the cynical game they have played with those lives, politicians have not paid a price. Now perhaps they will. Of course, women themselves will pay a heavy price as this new reality sorts itself out, particularly women with low incomes who now make up the majority of abortion patients.

And there’s another price to be paid as justices in the new majority turn to the mission they were selected for. The currency isn’t votes, but something even more important and harder to win back: the institutional legitimacy of the Supreme Court of the United States.

There’s no free ride for the court either.

What Greenhouse doesn’t address is the extent to which the GOP has depended upon both the energy of anti-abortion activists and the relative lack of political activism by pro-choice voters who have assumed that the courts will protect their rights. If Roe is either over-ruled or–as is more likely–eviscerated, it may well shift that dynamic to the detriment of “the folks in Mayberry” and the GOP.


  1. I’m not sure this is a cynical position but more about how the rigged system actually works and the unconscious and ego: “That’s when the anti-abortion forces decided that friendly legislatures were a better bet than the will of the people.”

    This is why the Democratic Party is bailing out and rehabbing the Republican Party on national television when we have Intel to put a large chunk of them in jail for insurrection or treason, along with several of their billionaire funders.

    The will of the people also want universal healthcare. The percent of people supporting universal healthcare would be higher if our media were truth-seeking instead of pandering to the lobbyists of Big Pharma, Health Insurance, and the AMA.

    The abortion propaganda has already started for both sides driving the people back into the two-party camp via the giant wedge the owners drive into society keeping us divided.

    Every single time I post about the truth on Facebook versus cheerleading for a party…crickets. Only one or two woke people get it. When I point out that MSNBC is full of bs just like Fox News, the egoic and unconscious minds of Democrats just shut down and gloss over it.

    This is all about the limited power the oligarchy has allowed the people to play with or wedge issues driving people back to the parties. It’s hilarious to watch. It’s how they herd the masses and keep them from looking at who has the real power or control over our lives.

  2. As a child who was adopted, I get livid over this . Yes I believe adoption is better than abortion, but never has there been emphasis on adoption as an alternative. And the disgusting pro life supporters DO NOT offer to take the woman or young girl in and care for her until the birth occurs. They just call her a murderer and leave it there.
    So for all the old white men and the women they can control who want to put an end to roe v wade, well I say to you, put up your homes and your money to take care of these females. Or shut up, period. Whatcha gonna do when women start dying again from illegal abortions? More hypocrisy from people who never walked in the shoes.

  3. The reason some commentary is “glossed over” or ignored is because it has no resonance with the audience.

    The price politicians must pay must also come from the women who, for reasons known only to themselves, still vote for Republicans. Maybe this attack on their very beings will wake them to the fact that the Republican party is operated by a bunch of one-issue hacks who give not a single damn about their rights. If they did, the evangelicals would stop promoting them and getting them funded.

    If Republicans can cast aside the Constitution, what are women’s rights to them? They are, by their own hand, immoral and salacious.

    So, ultimately, un-scriptured religion come to the rescue of sanity, fairness and real righteousness.

  4. Well, here I go again. Outlawing abortion WON’T stop abortions. It will only stop safe abortions. It seems to me that too many of those “pro-life” people are driven by their religious leaders’ desires for political power. I can’t remember ANY anti-abortion comments from Baptists prior to Roe. I do recall Catholics’ vociferous objections, but then I also remember the Cardinal Archbishop of Boston saying that, although he was personally opposed to abortion, it wasn’t his place to make all Americans follow his religious beliefs, when asked to comment on the ruling. It seems that back in the 70s, people believed in separation of church and state. Seems incredible now, doesn’t it.

  5. I am a man and that should somewhat discount my opinion on abortion, but I believe there are a few realities that the “Pro-Life” camp, or as I like to call them nowadays the “Force-to-Birth” lobby, over look. The biggest thing overlooked is even when abortion is illegal, there are going to be people that still seek abortions. Banning abortions is not going to stop abortions. It is going to make it harder, especially for poorer people, but it is not going to stop. Illegal abortions won’t always have the best outcomes for the women, and you will risk killing the women as well.

    That loud and vocal “Force to Birth” minority generally stand on religious reasoning, and that is fine, until you force your religious views on someone else. Just like allowing gay marriages is not going to force you to marry someone of the same gender, allowing abortions is not going to force you to have an abortion.

    The “force to birth” movement would do much better if they really were “Pro-Life”, and supported universal child support and a healthcare system that provided free access to birth control and prenatal care. They would cut down on the need for anyone to even face the choice if they would support meaningful sex education programs in all schools.

    Yes, I think this is going to be a double edged sword for all of those “Force-to-Birth” politicians that now find a significant percents of their constituents suddenly realize what this really mean to them personally and start to realize what the “Force-to-Brith” movement has been about all along.

  6. I wrote yesterday, “Politics is not governance. Politics is a performance art that presents the practitioner in a favorable light to certain segments of the population and forms a platform from which to convey the practitioner’s intentions in how to govern.”

    Republicans have given up even the pretense of governance because they know that they can get elected in certain states, and from there to the Federal Government, by performing the Republican song and dance with the help of their friends both from Fox News and the donor class.

    It’s slimy but a good living without the need for actual skills.

    They let the Democrats do the heavy lifting of governance so they have an enemy to hate and blame in the culture wars.

  7. From a LTE in today’s Boston Globe:

    It is time for common sense: It takes two to create a pregnancy. If the female is forced to carry the fetus to term, the male should pay for half of the cost of prenatal care. If the mother decides to keep the baby, the male responsible for the pregnancy should pay child support for 18 years. His role in the pregnancy can be easily ascertained by a DNA test after the birth. If unwilling, he should be forced to meet his responsibility by court order.

  8. Pete, and Lester I am totally with you!
    It would be lovely to see the GOP get bitten in their rear, by Karma, justice, or whatever one wishes to call it, as Greenhouse suggests is possible.
    The GOP does not care about the religious aspect of the abortion situation, it is just a tool, to them.

  9. I would agree with Lester @ 9:50 am – One step further would be if the birth father cannot support the mother and baby, he would have to get a vasectomy, after all if you can force a woman to have a baby, a vasectomy would not nearly be as intrusive.

    As I read on a Face Book Meme a woman could have sex with multiple different men over the course of nine months, but still have only one child. A man could have multiple sexual partners and potentially have multiple offspring.

    If we did have a Universal or Single Payer heath care system, young women and their families would not have to worry about the cost of birth control. Right now the Reactionary Rabid bible thumper’s take a page from Nancy Reagan with a just say no approach to sex if you are single.

  10. Ask the public whether they support Roe v. Wade and a majority say yes. Then ask them if they would support restrictions that are not allowed by Roe v. Wade and a majority again say yes. The obvious conclusion is that the poll respondents doesn’t actually know what Roe did.

    You are of course right that the decision in Roe has been altered by subsequent decisions, most prominently Planned Parenthood v. Casey. Nonetheless, Roe v. Wade still stands for the underlying principle that the Constitution protects a woman’s right to choose to have an abortion.

    I very much disagree with the claim the Court will use the new Mississippi case to “eviscerate” Roe. One could argue that the legal rationale of Roe is iffy at best and the Court was enacting a policy preference that should have been left to legislative bodies. Nonetheless, I don’t think the Court, mindful of the political disruption that overturning Roe would cause, will return the issue fully to state legislatures. I think you’re instead going to see them focus on moving the line for abortion which was 6 months in Roe, moved slightly backward to viability in Planned Parenthood, is going to be backward again more deeply into the second trimester.

    The Mississippi law draws the line at 15 weeks. About 95% of the abortions take place before 15 weeks. So if the Supreme Court draws the line at 15 or 16 weeks, the vast majority of abortions won’t be affected. And even if the Court draws the line at 15 weeks, states will be free to draw the line later than that if they so choose. The 15 week provision would be the floor. So I don’t buy that the new case is going to kneecap abortion rights.

    If Roe would never have happened, I think the overwhelming majority of state legislatures would have adopted laws that allowed early term abortions. Roe prevented that reasonable compromise from ever happening. The angst when it comes to abortion has always been about the second trimester abortion. The new court decision, by looking at the medical science of prenatal development (no this is not about religion) and drawing the line at 15 or 16 weeks, could well be on the way to allowing compromises to be made that will finally allow, after 48 years, the temperature on this issue to cool.

  11. “Civilization will not attain to its perfection until the last stone from the last church falls on the last priest.” Emile Zola

    Religion is now the guiding factor in almost every issue facing government today; anti-abortion is at the top of the list and we are moving into a holy war situation in the Supreme Court which has been coming since Roe vs. Wade was enacted. Religion based laws have moved into cake baking and pizza selling to set the standards; nowhere are those laws more in evidence than in Indiana. Trump raiding Notre Dame for the final linchpin in SCOTUS in the demise of women’s right to make health decisions with the qualified assistance of their physician. Lawyers and politicians are now a major factor within our health care system; including allowing CEOs in big business to decide female employee’s right to birth control. They are eating away at health care protection for those babies and post-natal care for the mothers of those forced births.

    The actions of our judicial system at all levels have surpassed anti-abortion issues and entered anti-life levels with no solution in mind for the survival of women and children; only seeking to increase their power and control from their lofty positions in our court system.

    I am the FOURTH woman among the so far TWELVE commenters this morning; a telling factor, consistent with the numbers in our judicial system.

  12. What’s next for Republicans when they no longer have their one-issue vote getter?

  13. It was entirely my birth mother’s choice all those years ago. Nothing else! I am more than glad and fortunate that she chose life for both of us, or you would not be reading this. Thanks, Roberta, for your earlier comment.

  14. Beth…you forgot….no gun control, no new taxes, no immigrants (except the wealthy with political connections), no congressional oversight, etc.

  15. Considering I’m a guy and never had an abortion, I don’t think I have the right to tell someone not to have one or they should have one.

    I have two granddaughters who are here now against the advice of doctors. I love those two girls to death. One was because her husband was a violent actor, crazy from being in Afghanistan on three separate tours of duty. And after her divorce she was raped by someone that she knew, and was told to have an abortion. She called and talked with both of us, mother and father, and in both cases she had the baby’s. I can’t picture how things would be without those girls! Of course, she had a very powerful support mechanism, her parents! Some people don’t have that, and, maybe that’s the best route for a person to go, to have an abortion! That’s not for me to judge.

    What is for me to judge, is how someone can try to impose their will on an individual one way or the other. Or, how religions can scream about contraception, and then offer no assistance when children are born to a poor household or to a troubled parent or parents. Where is the healthcare? Where is child care assistance? Where is the educational opportunities to lift people out of poverty or provide parents and their children the necessities of life?

    Every organization has an agenda, every news organization, every political organization, every so-called freedom fighter and every so-called terrorist, they all have agendas! It takes extremely enlightened willpower to get past the BS of different groups and their supporters! An example brought up on this threat is Julian Assange ,or, St. Julian, as some people like to think of him as, LOL! Another one with an agenda, or? Is he the only one without an agenda? The imperfection of man will invariably lead individuals to crave power and authority for themselves over those issues they claim to champion!

    Individuals with cravings of greatness, will always bend politics and religion, and, let’s add social media to that, to a bandwagon that they are at at the forefront of blowing the bugle! And, it draws the simpletons in like moths to a flame, or lemmings to a precipice! People are afraid to think for themselves, and because of this cowardice, the fear to own up to personal decisions. They exacerbate the moral decay of civilization because they let someone else decide on things that they are afraid to for themselves. Maybe it’s the fear of failure? I just think it’s hatred of everything that’s not them.

    If you want an abortion, that’s your choice! If you want to be gay? That’s your choice! If you want to be straight? That’s your choice! If you want to be an atheist? That’s your choice! If you want to be a theist? That’s your choice! If you want to be a politician, left, right, or center? That’s your choice!

    Mankind has been imbued with the knowledge of choice! Freedom of choice, or free will! Free will allows us to do whatever we wish! We are also imbued with a conscience which puts boundaries on our free will for most people! In other words like driving on the appropriate side of the road, or, stopping at stop signs and stoplights, or, not to jump out of an airplane Without a parachute, or, to do that very thing depending on the desired outcome. You could go on and on forever listing choices pro and con. But for the most part our conscience allows us to make the appropriate decisions and choices.

    Remember, in the United States as Christians claiming to follow Christianity concerning abortions and contraception and fornication and adultery or whatever, one has to realize that everyone has their own Free Will! No two individuals are going to make exactly the same decisions in the exact same way. Whether it comes to the food they eat are the way they worship or the decisions of conscience.

    Galatians 6:5; “for each one will carry his own load.”

    What does that mean? Concerning his load; Or “his own load of responsibility.” Paul here uses the Greek word phor·tiʹon, referring to something that is to be borne or carried, without any reference to its weight.

    The word phor·tiʹon was used back then as a term for a soldiers pack or kit. And that’s what responsibility is! So, we are responsible, our conscience is our toolkit, that allows us to arrive at an appropriate conclusion or choice! Everybody is responsible for their own toolkits! No one, unless they are explicitly asked, has any business judging someone on their personal choices of free will!

  16. Oh Dear, a High School in Florida had to censor photographs in the HS year book. Only the women’s photo’s were censored.

    From the Guardian:
    A high school in Florida will refund the cost of its yearbooks after a member of staff digitally altered images of dozens of female students to hide their chests and shoulders.

    The decision by Bartram Trail high school to censor 80 photographs, many with crude digital editing, angered parents and students. Some accused administrators of “making girls feel ashamed of their bodies”.

    No changes were made to portraits of male students, people who saw the yearbook said. Photographs of the boys’ swim team attired in only bathing suits were unaltered.

    In a comment to the St Augustine Record, Christina Langston, the district chief of community relations, said the editing was done by a female teacher who concluded that the photographs violated the district dress code that “clothing that is immodest, revealing, or distracting in character is unacceptable”.

  17. Thanks to St. Augustine, Christians have confused sex with orignal sin. That’s bad exegesis.

    Studies indicate that when women have good access to birth control and prenatal care, abortion rates decrease significantly. What’s really disturbing is so many “pro-life” people are against birth control.

    And during the AIDS epidemic gay men threw condoms at St. Patrick’s because they did not want gay men to have protection from AIDS.

    Yes, Lester, the men who get women ( and girls) pregnant should “man up” and at least support the mother and child financially. Men should wrap it anyway due to STD’s.

    I just watched Philomena. What the nuns did to that poor child who got pregnant due to no sex education was abhorrent. It’s based on a true story.

    I wish the government would stay out of our reproductive organs and that fundamentalists of every religion would stop equating sex between 2 consenting adults as “sinful”( well, maybe if adultery is being committed.}

  18. Looking at this issue and the apparent plan of the current authoritarian GOP to take control of government by any means necessary– I’d say that some form “The Handmaid’s Tale” is in our future. Abortion “rights” is NOT about defending the unborn or adoption or fathers’ rights and responsibilities. It’s about the CONTROL of women — period! That’s why so many so-called “pro-lifers” are also against birth control. They can’t stand the thought of women controlling their own destinies.

  19. Three comments today –

    Monotonous – forced vasectomy is like forced tubal ligation – it is the state directing unnecessary medical intervention to try to solve a social problem

    While I’ve been worried about the courts and the state legislatures all along, too many woman have coasted, assuming that the “war” was over and reproductive freedom had won. They have a bigger, more personal stake in this. Now, it is up to all of us to rise up and VOTE.

    Paul – I wish I had your optimistic outlook – I don’t believe there would have been compromises – abortion would have been legal in the northeast and illegal in the south and other “red” states.

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