US supreme court’s imbalance looms over Roe v Wade intervention

America Letter: Activists fret that nearly 50 years of reproductive rights could be undone

Those for and against abortion rights protest in front of the Mississippi state capitol in Jackson, Mississippi on Friday. Photograph: New York Times

Those for and against abortion rights protest in front of the Mississippi state capitol in Jackson, Mississippi on Friday. Photograph: New York Times

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Sometimes the impact of political decisions takes time to unfold. It can be months or even years before the full consequence of elections manifest themselves.

This week the real import of Donald Trump’s election victory in 2016 became clear.

While the news that New York’s attorney general is pursuing a criminal investigation into the former president raised questions about Trump’s ability to run again for the White House in 2024, an announcement by the supreme court on Monday was a reminder that his biggest legacy will be the composition of the nine-member court.

Due to a mix of luck and canny obstructionism by Republicans who refused to consider Barack Obama’s nominee after the death of Antonin Scalia in 2016, Trump was afforded the opportunity to appoint three supreme court justices during his four-year term. 

All three – Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – were hand-picked by the Trump White House and the right-wing Heritage Foundation for their conservative credentials.

On Monday, the court announced it will intervene for the first time since Coney Barrett’s appointment in an issue that continues to ignite passions across the political divide – abortion.

The court has agreed to hear a case concerning a Mississippi state law that seeks to ban most abortions after 15 weeks of pregnancy. The fact that the court is taking up the case indicates a willingness to revisit Roe v Wade, the landmark supreme court ruling that enshrined a woman’s constitutional right to abortion.

Pushing boundaries

For years, anti-abortion legislatures and groups have been pushing the boundaries of what is legally acceptable in terms of abortion access precisely to provoke the court to weigh in on the matter.

Pro-choice activists are worried that the new 6-3 conservative majority on the bench will threaten almost 50 years of reproductive rights. But while the justices could overturn the 1972 ruling, it is more likely that new constraints will be placed on the provision of abortion.

The state of Mississippi, which is controlled by Republicans, enacted the law under dispute in 2018. The state’s sole abortion clinic sued, and the proposed law has been the subject of various appeals. Several states across the country have also introduced legislation significantly curtailing access to abortion, including Texas this week.

Any decision by the supreme court to change the constitutional status of abortion rights would have implications at state level. Each state would have the power to decide whether to restrict abortion access, and some – particularly Democratic-leaning states – could choose to maintain full access to abortion before 24 weeks or later if there is a threat to the life of the mother, as is typically the case.

The supreme court is due to take up the Mississippi case in the autumn, with a decision likely next spring or early summer. This would coincide with the 2022 midterm election campaign, when Democrats will be under pressure to keep control of the US House of Representatives and the Senate. Abortion is likely to be an issue that will motivate supporters of both political parties.

Codifying

Asked this week about the supreme court decision to take up the case, White House press secretary Jen Psaki said President Joe Biden was committed to reproductive rights for all and to codifying Roe v Wade – a reference to the fact that abortion is still not codified through legislation.

Biden’s own position has shifted over the decades. A practising Catholic, he opposed the Hyde amendment, which bans the use of federal funds for abortion providers, earlier in his career, but is now firmly pro-choice. Since becoming president he has continued to attract criticism from Catholic groups about his stance on abortion. New York cardinal Timothy Dolan was an admirer of Trump and has criticised the current president’s position on abortion.

While the supreme court decision is still some time away, Biden has established a commission to examine possible reforms to the court, though he stopped short of bowing to demands from progressive elements of his party to expand the court to counter the conservative dominance.

The commission met this week for the first time and will report by November, though some on the left are cynical about how much it will achieve. What may prove more effectual is calls for Justice Stephen Breyer (82) to retire so that Biden can appoint a younger successor. Some argued that Ruth Bader Ginsburg should have retired when Democrats were in a position to nominate a successor. Whether this is something Breyer is considering remains to be seen.

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