A photo of people who were US Supreme Court justices in February 2018.

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The GOP Can’t Wait for the Next SCOTUS Justice to Retire

A conservative-majority Supreme Court is more than just a nightmare scenario for abortion rights; with increasing pressure from "Personhood" pro-lifers, Republicans are planning on it.

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A few days ago, I woke up in a cold sweat after dreaming that Supreme Court Justice Elena Kagan announced her retirement—although visually it was it was Judge Sonia Sotomayor. There was no reason given, and it was my job to try to talk her into staying on the bench. I failed miserably, even despite learning that Trump would replace her with a 25-year-old Catholic priest.

It doesn’t take a rocket scientist to interpret my nightmare or explain that I am extremely anxious about someone—anyone on the left side of the SCOTUS lineup—stepping down in the next few years. Or that my anxiety is rising to a “should we talk about increasing your Zoloft”–size level over the last month or two. But in case you are still in doubt, my fear is completely reasonable. You only have to look at new abortion bills coming down the state pipeline to know that abortion opponents think the Supreme Court will soon be in their grasp.

In the years post–tea party election wave in 2010, when a multitude of states were under GOP control, the right began their methodical, deliberate process of passing model abortion-restriction legislation that nibbled at, but for the most part didn’t blatantly violate, the constitutional boundaries set around the right to terminate a pregnancy. Bills like 72-hour waits, 20-week bans (which are usually 22-week gestational bans, with gestational age being the typical way of dating pregnancy, starting at the date of the last menstrual period), and even D&E bans all purposefully toyed around the edges of lines like viability, undue burden to abortion access, or procedural versus total bans on abortion. The reason for these minor, cautious bills were logical—try to get the highest court in the land to agree to new definitions more restrictive than the ones in Roe v. Wade or Planned Parenthood v. Casey and then, once the legal precedent is set, restrict the procedure even more under these new court-supported guidelines.

Not everyone agreed with the plan, of course. Incremental legislation was often supported by National Right to Life, Americans United for Life, and other “mainstream” anti-abortion action groups. Meanwhile the more extreme, grassroots side of the aisle was vying for Personhood bills—establishing protections at the moment of conception—or Heartbeat bans at four weeks post-conception, attempting to make the court reverse its decision on legal abortion all together. The two fought constantly, and in most cases the mainstream won, often blocking more restrictive legislation so it wouldn’t be put into effect and result in a court challenge that could backfire and reaffirm the protections in Roe. In the cases where they didn’t win and the Personhood movement had their small victories, either the courts rejected them or they ended up in ballot measures where voters rejected them instead.

If you’ve been watching abortion bills get introduced this session in the states, however, you can see that all of that has changed. In Mississippi, the State House approved a straight, full on gestational ban at 15 weeks gestation/13 week post-fertilization—a full seven weeks before the state’s current limit and nine weeks earlier than the federal 20- week ban that just died in the Senate.

There are a number of ways that you can see that this bill is a direct constitutional challenge. While it mentions D&E, it does not specifically ban the practice like the D&E bans in Kansas, Oklahoma, and other states. That’s a deliberate change: D&E bans are being presented as “constitutional” because allegedly abortions could still be performed as long as they are conducted in a different way (regardless of that fact that D&E is the safest way for a pregnant person to have a second trimester abortion). By instead being a full gestational ban, and with no exceptions save for the life of the pregnant person, Mississippi is directly and undeniably conducting a full on assault on Roe.

They aren’t alone, either. New Hampshire Republicans also introduced a blatantly unconstitutional bill that would ban all abortion after eight weeks post fertilization (ten weeks gestation), using the scientifically dubious language used in 20-week bans about allegations of fetal pain and rolling the limit back to four weeks before the end of the first trimester. If the bill passes, it will do exactly what reproductive-rights activists had assumed was the end game of passing so-called “fetal pain” bans—that if the court allows abortion to be banned at the point of alleged “pain” then states will get to use their medically inaccurate studies to claim fetal pain begins even earlier than the 20 weeks they stated before.

What we are learning already in the 2018 legislative session is that much of the cautiousness that had been keeping the anti-abortion movement working incrementally on their abortion bans is being thrown out the window. That means one of two things: Either the “mainstream” has lost the ability to control the more extreme side of the movement or, more worryingly, they no longer believe they need to proceed cautiously at all.

Without a doubt, the far right, no-exceptions anti-abortion movement is getting restless. It has been a full year into the Trump administration and to many in that sector they feel like an opportunity to create real change in abortion laws is getting lost. The “Personhood Alliance,” a group advocating for a ban on abortion (and potentially most contraception) from the moment of fertilization, is urging the president to sign an executive order declaring a fertilized egg is a person in order to force a Supreme Court confrontation. And Troy Newman, the leader of Operation Rescue, is demanding that both mainstream anti-abortion organizations and the GOP politicians who claim that they oppose abortion stop promoting “baby-step” legislation at all and prove that they truly believe abortion is a crime and stop it once and for all.

“We’ve got the House and the Senate and a great pro-life president who would sign a bill today to abolish abortion if it were put on his desk,” Newman told me after the recent March for Life. “Our movement—growing, vibrant, energetic, funded—has been co-opted by the corporate pro-life movement and their ‘baby-step’ approach. We have the opportunity to take leaps on abortion … yet they have failed categorically.”

Is the “corporate pro-life movement,” as Newman calls it, finally getting out of the way and letting the process to make abortion illegal start working its way up the court system? It sure seems to be looking that way, even if it may still be a more cautious approach than the likes of Newman or the Personhood supporters prefer. While none of these bills will have an immediate impact now (not even an executive order, if the president does surprisingly decided to bite on the idea), they represent the beginning of the multi-year process to elevate a case all the way to the top bench—a bench that the right seems convinced is about to have a majority of abortion opponents sitting soon.

No wonder I’m finding it so hard to sleep at night. Any day I could wake up and my current nightmare scenario could become a reality.

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