Jurisprudence

Can Congress Do Anything to Save Reproductive Rights?

Barriers are seen in front of the Supreme Court.
The U.S. Supreme Court on Monday. Anna Moneymaker/Getty Images

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The Guttmacher Institute says that throughout 2021, 165 state bills banning abortion have been introduced in legislatures across the country in a “shock and awe” campaign. Anti-abortion politicians have been whittling away at Roe v. Wade for years, but what’s happening now is fundamentally different—statehouses and courts are working hand in hand to roll back the right to abortion completely. With the walls of the legal system closing in, where does that leave the right to choose? To find out, I spoke with Mark Joseph Stern, who covers the Supreme Court for Slate, on Wednesday’s episode of What Next. Our conversation has been edited and condensed for clarity.

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Mary Harris: If you want to zoom in on a state that’s laser-focused on restricting abortion, and think about how those restrictions might play out over the next few months and years, Arkansas is a good place to start. Arkansas already put in place a “trigger law” a couple of years back, which would automatically ban abortion if Roe v. Wade gets overturned. But this year, Arkansas instituted an abortion ban of its own, in violation of existing legal precedent.

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Mark Joseph Stern: That ban is so extreme, beginning at fertilization. Even if the embryo was created through an act of rape, the law says, well, there’s nothing that the woman can do. She has to carry that pregnancy to term.

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What’s interesting is that a huge percentage of fertilized eggs do not go on to become babies or embryos or anything else. Women get their period, or they miscarry, and some of them never knew they were pregnant in the first place.

Yes. This is something we’ll see after Roe is reversed that we already see in countries where abortion is banned, which is criminal investigations of miscarriages—not uncommon in countries with really extreme restrictive abortion bans like in Central America, for instance, where prosecutors get involved when a woman goes to the hospital with a miscarriage and investigate whether that miscarriage was induced. This becomes a criminal case. It’s no longer a personal medical issue. It’s a matter of a legal, natural human under the law dying under potentially suspicious circumstances.

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Have we already begun to see prosecutors wrestling with that ambiguity here in the United States?

Absolutely. This is something anti-abortion advocates don’t like to talk about, but we have already seen a number of prosecutors try to work around Roe v. Wade to prosecute women who terminate their own pregnancies. In states like Georgia and Idaho, we have seen women who have minimal access to abortion clinics order drugs online and do their own abortions. And prosecutors will file criminal charges against them. They will go to the hospital and handcuff them. They will throw them in jail and, again, try to work around Roe to say, “You murdered this child” or “You practiced medicine illegally” or “You disposed of a corpse unlawfully,” using these arcane laws or going straight for murder to try to put the woman on the hook. We see anti-abortion advocates say, Well, we don’t want to punish women who terminate—we want to punish the abortionists. But in reality, women themselves are often the so-called abortionists today. That’s something that anti-abortion advocates just haven’t wrestled with. And I think it shows what a fantasy or delusion it is for them to claim that women won’t ever be punished for terminating their pregnancies.

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Back when Arkansas passed that “trigger law” in 2019, legislators, even anti-abortion ones, openly worried about the implications of the bill they were debating. When a few Republicans tried to insert language into the bill granting exceptions in rape and incest, their colleagues brushed them off, and said they were making the kinds of arguments Planned Parenthood might make. This shows that conservative legislators are feeling confident.

Abortion restrictions have always been about the art of the possible. For a long time, the goal was to get the Supreme Court to push Roe to its limits by, say, upholding mandatory ultrasounds or really long waiting periods or mandatory counseling where a doctor has to spew this anti-abortion propaganda. At that point, some Republicans wouldn’t necessarily want to go out and say the end goal here is to just ban all abortions, because that gives the game away. Think about the trap laws that impose onerous restrictions on abortion clinics to try to shutter them.

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These are restrictions that your door has to be a certain number of feet wide, and you have to be associated with a nearby hospital in order to do abortions.

Your doctor has to have admitting privileges at a hospital that’s within 10 feet or 15 miles. Your vents have to be so many inches wide. All of this stuff that all medical experts agree is not actually necessary to protect women’s health, but Republicans had to pretend like they were about women’s health, like they were not actually about banning abortion, because Roe still seemed at that point like it was here to stay. After Brett Kavanaugh joined the court, after lower courts started to suggest they were ready to start defying Roe, and especially after Amy Coney Barrett replaced Ruth Bader Ginsburg, I think Republican legislators saw less of a reason to pretend like this was about protecting women’s health or even about incrementally rolling back abortion. This has become a sprint to overturn Roe, to take the glory of being the state that ends Roe. There’s no need to pretend like it’s about anything else. And Republicans who have some concerns about extreme abortion bans don’t have much room in the party, at least not in the state level in most of the country.

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But none of these bills can go into effect given Roe vs. Wade. So what’s the point?

The point is, I think, twofold. First, to create a sense that there is this all-out assault on Roe that indicates its weakness or instability. The second point, which is related, is to actually send the Supreme Court a vehicle that will let the justices overturn Roe. They need a case. And I think all of these states want to be the ones to send the Supreme Court the case that leads to the reversal of Roe.

You’ve said the timing is good for conservatives to overturn Roe v. Wade. Why do you say that?

I would say three words here: Amy Coney Barrett. For many years there were five votes to restrict Roe, to rein it in, to allow incremental restrictions on abortion. But there were never five votes to reverse it outright. Now it looks like there may be up to six votes to reverse Roe outright.

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You’ve said “after” Roe v. Wade is overturned, but shouldn’t we say “if”?

I think it’s very clear that Roe will be overturned or perhaps so eviscerated that it basically doesn’t exist anymore. I think that for people like me who are pro-choice, it’s better to start grappling with that reality, both on the abstract level and in terms of how we talk about abortion. I think it’s probably more realistic to just say Roe is going to go and we’ll learn exactly how over the next year.

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Accepting Roe is on the way out means thinking through other legal problems like the ones Arkansas is about to create, problems for people who may not see themselves as especially involved in the debate over abortion right now.

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Once you’ve granted this personhood to a fertilized egg, then you have criminalized a broad swath of fertility treatments, including IVF, because that process involves creating embryos and eventually destroying some of them This is something the anti-abortion movement has been focused on for some time. In fact, there are devout Christian couples who will adopt an embryo.

They’re called “snowflake babies.”

Precisely. “Snowflake babies” who are carried to term by another woman. And they think that this is protecting the sanctity of human life. It was only a matter of time until that bled into legislation. What we’re seeing in Arkansas is not just affecting individual women’s health decisions but affecting couples, both same sex and opposite sex couples who struggle with infertility. This law very clearly says you are not welcome in Arkansas if you want to use IVF. I think that’s the next stage in this battle because this isn’t going to end with abortion. This was never going to end with abortion. It’s also about all this other stuff, including contraception, birth control, and IVF. Once Roe falls, that’s the next front.

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So Arkansas is doing this very extreme approach. And again, this law is not enforceable under current American law. I think it’s also worth talking about what’s happening in Texas, because the law that state passed is not the most draconian, but it has interesting ways to restrict abortion and provide incentives for people to look into one another’s lives and punish others for their actions, which is a new approach. Can you tell me a little bit about what’s happening in Texas?

Texas has long tried to severely restrict abortion, through a ton of draconian restrictions and limitations. Every time, Planned Parenthood or another group marches into a federal district court in Austin and secures a preliminary injunction that blocks the enforcement of the law. Republicans get really mad and they pass another one and the cycle repeats itself. With this new bill, SB 8, Republicans have tried something new: banning abortion after six weeks, and expressly barring the attorney general or any other state official from enforcing the law. What that means is Planned Parenthood cannot go into a federal court in Austin and sue the Texas attorney general to try to block him from enforcing this law, because he doesn’t have the power to enforce this law. No state official has the power to enforce this law. Instead, the law is enforced by private citizens, individuals anywhere in Texas who can march into a state court and file a lawsuit against any person who aids or abets an abortion that occurs after six weeks. The damages begin at $10,000 plus attorney’s fees. And it’s written in the broadest way possible to sweep in not just abortion providers, not just clinic staff, not just the receptionist at Planned Parenthood, but also a friend who drives you to the clinic, a family member who helps to cover the bill, someone in another state who gives money to an abortion fund that ends up helping to pay for your procedure. All of those people can be sued and they have to duke it out in the court where the private citizen filed the lawsuit, which means that people are going to be going into court and suing the hell out of Planned Parenthood starting in September, when this law takes effect.

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While these state laws have been getting jammed through, the Supreme Court has sent a signal about how its rulings on abortion could be changing. It announced plans to take up a case from Mississippi that challenges Roe v. Wade directly. The state tried to ban most abortions after 15 weeks of pregnancy a few years back.

Let’s be clear: Mississippi passed this law explicitly to serve as a vehicle for the Supreme Court to overturn Roe. The law has never taken effect. The Legislature passed it in 2018, a federal district court blocked it, and then the 5th U.S. Circuit Court of Appeals upheld that decision.

I think maybe part of the conservative justices are thinking here is that pro-choice advocates will settle for 15-week ban because they’re afraid of a law like Arkansas’ getting greenlit instead.

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To give the background: Mississippi passes the law, and lower courts block it. But this Trump judge named Jim Ho on the 5th Circuit writes this long, separate opinion where he says, I have to block this under Roe, but I really hope the Supreme Court uses this case as a vehicle to overturn Roe, because I think it is wrong. This judge was speaking for almost all Trump judges who are very, very hostile to reproductive rights.

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Mississippi offered the Supreme Court a bunch of different options if it wanted to take up this case. The state said, the court could take this case and just use it to decide whether Roe v. Wade should stand—but it could also take this case and use it to tweak the standard that courts use when assessing abortion restrictions, to say that fetal life is a compelling state interest that can outweigh women’s interests. Or it could use the law to restrict abortion clinics’ ability to bring lawsuits on behalf of patients.

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Is there any indication of which option the court’s going to take?

Oh yes, because the court told us. The Supreme Court has said, We don’t want these compromises, we don’t want these half measures, we’re just going to take the one big question, which is whether we should overturn Roe v. Wade and allow states to ban abortions before fetal viability.

The justices won’t hear this case until the next session. What do you think their ruling will do about these more restrictive abortion measures that are now going into place in states like Arkansas?

The question the court took up essentially asks: Does the Constitution prohibit states from outlawing abortion before viability? Again, Roe answered that question: Yes, the Constitution does prohibit states from banning abortion before viability, and that for nearly 50 years has been the bright-line rule.

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It seems likely to me that the Supreme Court will just uphold this law and not say exactly how far its reasoning goes. It’ll probably say something like, Mississippi has the authority to ban abortions at 15 weeks, that Roe is overturned to the extent that it prohibits Mississippi from doing that, and then leave it to the lower courts to start upholding the even more extreme restrictions, including the outright bans.

So it opens the door for a continued assault by more extreme laws.

Once you’ve overturned the viability rule, it’s not clear that there’s any bright-line standard, that there’s any point in pregnancy where courts can say, “before this point, abortion must be legal.” After this point, it can be criminalized. Once it goes away, Trump judges, especially those in the lower courts who have been so eager to uphold abortion bans, will finally have what they need. They will have this ruling from the Supreme Court that will allow them to uphold even more extreme bills. And sure the Supreme Court may only uphold a 15-week ban, but its reasoning may apply to a six-week ban or a total ban or whatever.

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I’m curious how abortion advocates are rethinking strategy here. It looks like even the way they make legal arguments may need to change. I remember that Ruth Bader Ginsburg really wanted legislation that enshrined the right to abortion, instead of depending on court cases. Is that a direction these advocates are taking, or are they thinking of whole new ways to argue in court?

That’s always been a direction pro-choice advocates have been going: getting good progressive pro-choice legislation passed at both the state and the federal level. They’ve obviously had the most luck in blue states—like New York, which expanded abortion rights after Democrats finally took real control of the government, and California. But, of course, if you only focus on the states, that ensures places like Mississippi and Alabama and Texas will preserve their own extreme bans. So the question becomes, what can Congress do to override state abortion restrictions? With this Supreme Court, the answer is not much.

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Why?

This Supreme Court believes deeply in states’ rights, in restricting the power of Congress and the federal government. If you look at what the court did with voting rights, I think a preview of what it would do with abortion rights if Congress did enact laws.

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Congress passed this law, the Voting Rights Act, that gave the federal government veto power over new restrictions on the franchise in certain states. In 2013, the Supreme Court struck that down and said no, Congress doesn’t get to override state laws or veto state laws. I foresee a similar decision if Congress tries to pass a federal abortion law that protects abortion rights at the state level. Kamala Harris has proposed something very similar to the Voting Rights Act for abortion, through which the federal government could veto these state laws. I think it’s pretty clear that this Supreme Court, which doesn’t even seem to believe in Roe, would not allow Congress to extend its power into the states and for those states to preserve abortion access.

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That’s why Congress is considering H.R. 1 and these other voting protection measures. Are you saying that we’re set up for a seesaw at this point, with these two branches of government playing tug of war?

I think that’s probably the optimistic version, since it doesn’t look like Congress is actually going to be able to pass anything protecting abortion rights unless it modifies the filibuster. So, not so much a tug of war as Congress proposing a bunch of legislation, never passing it, and the Supreme Court increasingly authorizing states to restrict and ban abortion.

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I noticed that some states like Hawaii and New Mexico are passing laws that increase abortion access. It made me wonder if we were headed for a reality not so much of abortion being off-limits but it being off limits in certain places in the United States.

I think that’s already our reality because there are states like Mississippi that only have one abortion clinic. If you live in a rural region far away from that clinic, you have to drive hours and hours and hours or fly and take time off your job to terminate a pregnancy. Many low-income women cannot do that. Many minority communities already live in a reality where abortion is not legal. This is an important fight to have over the Constitution and individual rights, but the truth is that Roe v. Wade has not been good law on the ground in vast swaths of the United States for some time now—which is a testament to the success of the anti-abortion movement’s incremental strategy of rolling back abortion rights. Now it’s finally going whole hog.

Sorry to be a downer, but this stuff was always coming from the moment Ginsburg decided not to retire in 2013. We just didn’t know we were living on borrowed time.

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