Take Abortion Out of the Court’s Hands

Abortion rights shouldn’t be at the mercy of the judiciary. We need federal legislation codifying Roe v. Wade — and Democrats need to buck up and eliminate the filibuster to pass it.

The Supreme Court’s December 1 hearing on Mississippi’s fifteen-week abortion ban confirmed what everyone had already guessed: anti-abortion justices will throw abortion rights on the scrap heap when they hand down their decision next summer.

The three judges who support abortion rights were reduced to appealing to the court’s reputation. “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” Justice Sonia Sotomayor asked early in the hearing.

Chief Justice John Roberts, perhaps the only anti-abortion justice concerned with preserving the court’s legitimacy, querulously noted that only the fifteen-week ban, not banning abortion as a whole, was before the court. The five other hard-right appointees clearly don’t care.

That distinction is technical anyway. The Mississippi law bans abortion at and after fifteen weeks, but if the court rubber-stamps the law, it will break up the legal regime set up by Roe v. Wade and later decisions that prevents states from substantially hampering access before viability, now twenty-two to twenty-four weeks. If the court blows away that standard, anti-abortion state governments can argue that any pre-viability ban is allowable.

The cautious route would be to leave the Mississippi law intact and let other states appeal their six-week bans and outright bans. But aside from Roberts, the court’s anti-abortion majority appears to have no interest in gradualism.

If the court allows outright bans, those laws will immediately go into effect in twenty-one states. In the South, only Florida, North Carolina, and Virginia have no post-Roe bans in place. According to a Guttmacher Institute analysis, twenty-six states are “certain or likely” to ban abortion if the court permits it.

With the situation sharpening into focus, it’s tempting to feel hopeless. But despair isn’t an option. Instead, we should think more creatively and expansively about how to secure and protect abortion access throughout the country, beginning with the question of why our abortion rights are at the mercy of the judiciary in the first place.

See the rest of the article at Jacobin.

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