One could feel sorry for Chief Justice John Roberts. He is, after all, caught in an unsightly squeeze play between anti-abortion zealots in Alabama, and slightly less wild-eyed anti-abortion zealots in Georgia, Ohio, Tennessee, and Indiana (the court seems unable to make a decision on whether to grant the Indiana petition it has been sitting on for months now). There’s finally a five-justice majority within striking distance of a decadeslong dream to overturn Roe v. Wade, and the anti-choice activists are getting ahead of themselves like slurring drunks at a frat party and making everything more transparently nasty than it need be.
There are easy and near invisible ways for the high court to end Roe. That has always been, and remains, the logical trajectory. As Mark Joseph Stern has shown, when Brett Kavanaugh came onto the court, with his dog whistles and signaling around reproductive rights, it became clear that he would guide the court to simply allow states to erect more and more barriers to abortion access (dolphin-skin window coverings on every clinic!). The five justices in the majority would do it all while finding ways to say that such regulations were not an “undue burden” on a woman’s right to choose. The courts and state legislatures could continue their lilting love songs to the need for the states to protect maternal health and to help confused mommies make good choices, and nobody need dirty their hands by acknowledging that the three decades’ worth of cumbersome clinic regulations and admitting privileges laws were just pretexts for closing clinics and ending abortion altogether.
But the state of Alabama runs now to the Supreme Court with its mask of tender solicitude for women and their health askew. The briefest look at the debate as Alabama on Tuesday passed the cruelest and most punitive abortion regulation in modern American history shows exactly how much concern they have for the health of pregnant women or the suffering of future children: Republican Sen. Clyde Chambliss, who sponsored the ban in the Senate, issued a press release claiming that “Roe v. Wade has ended the lives of millions of children. While we cannot undo the damage that decades of legal precedence under Roe have caused, this bill has the opportunity to save the lives of millions of unborn children.” Also in that press release: “Life and liberty are not man given; they are given by our Creator. Today, Alabama made clear that we will protect our rights and the rights of our unborn children.” This is not about maternal health or the safe practice of medicine, and it never was. It’s about God. That makes things awkward for John Roberts.
In his statement on Alabama’s Senate floor Tuesday, Chambliss also clarified that he was not a doctor or even fully capable of understanding how a woman could know when she was pregnant. “But from what I’ve read, what I’ve been told, there’s some period of time before you can know a woman is pregnant.” Chambliss then argued that his bill required no rape or incest exception because under the new law a woman could still get an abortion as long as she didn’t know she was pregnant. “If we pass this bill, my hope is that all ladies will be educated by their parents or guardians that should a situation like this occur, you need to go get help immediately so they could get the physical help they need. If they wait, justice delayed is justice denied.”
Nobody actually understood what he was even talking about. “How can someone know they need to make an appointment if they don’t know they’re pregnant?” the National Abortion Federation tweeted. “This bill is absurd.” That makes things awkward for Brett Kavanaugh.
The bill’s sponsor, Republican state Rep. Terry Collins, said after the vote: “This bill is about challenging Roe v. Wade and protecting the lives of the unborn, because an unborn baby is a person who deserves love and protection.” She was also perfectly clear about the fact that the bill was designed as a fast-track test of Roe, and not to promote the health and best interests of Alabamians. That’s why she refused to support a rape and incest exception, because it would decrease the likelihood of the law rocketing to the Supreme Court. She did add that exceptions that protect women could come in later: “My goal with this bill is not to hurt them in any way,” Collins said, according to AL.com. “My goal with this bill, and I think all of our goal, is to have Roe vs. Wade turned over, and that decision be sent back to the states so that we can come up with our laws that address and include amendments and things that address those issues.”
The sponsor of a bill that will affect how real women live their real lives would rather focus on overturning Roe than protecting women, even rape victims. It wasn’t enough to pass an unconstitutional law. It had to be unconstitutional and heartless. Well, at least those pretexts about protecting mothers are gone now.
Not to be outdone, Alabama Pro-Life Coalition President Eric Johnston told NPR that he crafted the Alabama abortion ban to reach the high court on a fast track with the not-at-all ghoulish hopes that Justice Ruth Bader Ginsburg will die and be replaced by a judge appointed by President Donald Trump: “The strategy here is that we will win this,” he said. “There are a lot of factors. And the main one is two new judges that may give the ability to have Roe reviewed. And Justice Ginsburg—no one knows about her health.” Johnston further clarified for CNN that while the amendment to exempt rape and incest victims is “sympathetic” and “deals with very difficult issues,” it would upend the law’s legal standing. “Regardless of how the conception takes place, the product is a child, and so we’re saying that that unborn child is a person entitled to protection of law,” he added. “So if, be it a rape or incest conception, then it would be impossible to ask a judge which of these is protected by law and which is not.”
Why, then, do I feel sorry for John Roberts? Because what keeps the Supreme Court in business is often the polite subterfuge of complex legal doctrine. We don’t so much suppress minority votes as protect the dignity of the states. We don’t so much enable dark money to corrupt elections as invite free speech. And we don’t so much punish women for bearing children as celebrate God and babies. This is all the kind of democracy-suppressive language the justices can get behind. It’s why Americans don’t riot on the streets.
It’s easiest to swallow when courts pretend to be a bit more human than they are while what are essentially unvarnished religious arguments get dressed up in platitudes about patient care, informed consent, maternal information, and solicitude for mothers in distress. It’s easier to pretend that every fertilized egg is a person if one also pretend-acknowledges that every mother is a person as well. But legislators in Ohio, who insist that an 11-year-old rape victim has no legal autonomy or dignity, and legislators in Georgia, who insist that women can be investigated and charged with murder for their miscarriages, and legislators in Alabama, who bragged that they would disregard the interests of rape victims for now because it would get their legislation before the Supreme Court sooner, have, in their zeal for godliness and exigent court review, accidentally dispensed with these polite pretexts. They are openly saying now the thing that will make it very difficult for John Roberts, institutionalist, and Brett Kavanaugh, girls basketball coach, to embrace: America should end Roe v. Wade not because abortions should be safer or offered alongside better information, but because every woman who suffers an unwanted pregnancy is bad, her baby is good, and such a woman should be punished and made to suffer for her sins. It is the exact sentiment Donald Trump accidentally blurted out during the 2016 campaign, before he was told that preserving the pretext is everything.
What is interesting is that these pretexts were already falling apart at the high court. This past Monday saw the veneer of comity and civility collapse as the justices swiped at each other in public documents about their respective bad faith. The context was the death penalty, not abortion, but the reason the attacks were so personal and shocking is that the justices recently appeared eager to point to the pretexts and pretenses employed by the other side. In a case last month involving an impending execution, Justice Stephen Breyer wrote in his dissent that in denying a hearing, the court’s conservative justices had deviated from “basic principles of fairness.” This week, Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch retaliated against Breyer, in writing, for making that assertion.
Thomas, as he wrote Monday, is done with the pretense that death row lawyers are ever really justified in bringing appeals: “It is no secret, for it is the same strategy adopted by many death-row inmates with an impending execution: bring last-minute claims that will delay the execution, no matter how groundless. … Such delay both rewards gamesmanship and threatens to make last-minute stay applications the norm instead of the exception.” In other words, let’s call it what it is: a game.
Whatever your feelings about the death penalty, the point is that Thomas and Alito are ready to do away with pretenses. Their admitted interest in having the states kill people faster and with less process is, in its way, refreshingly honest. And now, the good people of Alabama, Ohio, Georgia, and Louisiana are demanding that the Supreme Court similarly shed the decades-long pretext that concerns for maternal health and well-being are more urgent than the imperative to undo the constitutional right to abortion at any cost. Women will die in those states as a result of these new laws, and women will go to jail. That’s the point, and that is increasingly apparent as the point. And John Roberts doesn’t like that kind of candor at all.
As Joan Biskupic and Noah Feldman and Laurence Tribe all argue, the likelihood of John Roberts taking on an absurd-on-its-face abortion statute like Alabama’s, in advance of an election year, is close to nil. But it doesn’t matter. This can still be done by stealth. What happened this week in Alabama is small ball.
But no matter what he does next, the story Roberts likes to tell—and that we prefer to hear—about the slow, incrementalist, precedent-loving Supreme Court, is falling apart. It’s openly collapsing under the weight of the death penalty fight, but it’s also disintegrating as states vie with one another for more extreme ways to punish and humiliate women. I feel sorry for the chief justice largely because all this is happening just when the court’s reputation matters most. Roe v. Wade is in the news this month not because it’s in the crosshairs (yet), but because amateurs in Alabama and Georgia are drunk on God, and as a consequence, the Supreme Court’s slip is showing. The path to ending abortion in America was smooth and seamless in the hands of John Roberts and Brett Kavanaugh; most of us would never have seen it happen. But so long as Alabama and Georgia keep saying the quiet parts at the tops of their lungs, the court’s conservatives cannot accomplish what they had been on track to accomplish—at least, they cannot do it quietly. The question for the chief justice is no longer whether he prefers to win quietly on reversing Roe. He’s going to win ugly. He needs to decide if he can live with that.
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