The battle for reproductive freedom will be back on the front burner next week when the U.S. Supreme Court hears arguments on the draconian Texas abortion law in two separate cases, Whole Woman’s Health v. Jackson and United States v. Texas.
The landmark Roe v. Wade decision, which protects the right of women to make decisions about their own bodies, is in more danger now than it has been at any time since the court decided the case in 1973. Six of the nine Supreme Court justices are conservatives, and the three liberal judges may not be able to hold the line for women any longer.
If the court upholds the law, millions of women will lose their right to choose — essentially banning access to abortion services in Texas. Several red states would use the reversal of Roe as a trigger, follow the Texas example and severely limit reproductive choices for women.
Chief Justice John Roberts is one of the conservatives on the court. Roberts is a legal institutionalist who might be hesitant to risk the legitimacy of the high court in a ruling that would create a political firestorm. But that leaves five other conservative justices who seemingly aren’t afraid to create a political backlash to advance their ideology and destroy almost half a century of legal precedent.
In Roe, the high court decided women had a constitutional right to make decisions about their own bodies through the first 24 weeks of their pregnancies. A subsequent court ruling in 1992 in Planned Parenthood v. Casey specified that states can’t place an “undue burden” in abortion access.
Lawyers on the side of abortion rights will argue that the Texas law does place an undue burden on women. The court also will hear a case, Dobbs v. Jackson’s Women’s Health Organization, on a restrictive Mississippi abortion law on Dec. 1. The Texas law makes it virtually impossible for a woman to have an abortion after the sixth week of her pregnancy (before many women know they are pregnant) even in cases of rape or incest. The Mississippi statute bans abortions after 15 weeks.
Next year, most states will have gubernatorial and legislative elections. If the Supreme Court does nullify Roe v. Wade by upholding the Texas statute, these state officials will be the last line of defense in the fight to protect reproductive freedom.
We will get an early warning on abortion sentiment next week. The gubernatorial battle in Virginia will determine whether the state has a governor who supports abortion rights in the Democratic candidate Terry McAuliffe or an abortion rights opponent in GOP hopeful Glenn Younkin. The entire membership of the state’s lower house is up for grabs.
The GOP has a historic advantage going into the midterm elections next year. Most of the time, the sitting president’s party loses congressional seats. But a Supreme Court decision to affirm the Texas law might blunt the edge by driving voters to the polls on this issue.
Hardly any Americans support the nullification of Roe v. Wade according to a June national poll conducted by NPR and PBS. Most Americans describe themselves as “pro-choice” and six of 10 independents depict themselves that way. Independents will be key to the outcome of the elections next year.
The Texas law contains restrictions that most Americans find unreasonable. Only one-fourth of the public believes doctors should be jailed or fined for performing abortions. Only one in three people support a ban on abortions after six weeks or when a fetal heartbeat is generally detected. Only one-third oppose the right to abortions in cases of rape and incest.
There is already evidence that the Texas ban on abortions could be a big problem for Republicans nationally. Back in February Americans were split down the middle on whether they described themselves as “pro-choice” or “pro-life” — but after the Texas ban became law, the public outrage over the restrictions led to a big shift in attitudes toward the “pro-choice” label.
A Supreme Court decision to nullify a woman’s right to abortion services could stir up a hornets’ nest that would sting Republican congressional, gubernatorial and state legislative candidates next fall.
The poll indicates that abortion is a more compelling issue for Republicans than Democrats right now. That might change if the court upholds the Texas law and women lose abortion access.
Americans do support some limitations on abortion, but all hell will let loose if the court radically trespasses on the freedom of women to make choices about their bodies and health care.
Abortion is not on top of the list of public concerns, but it is a polarizing issue that defines for many voters whether they are Democrats or Republicans or liberals or progressives. A sharp reversal of the precedent set in Roe to access abortion by the high court would drive independents into the liberal camp and make it easier for them to vote Democratic next year.
Brad Bannon is a Democratic pollster and CEO of Bannon Communications Research. His podcast, “Deadline D.C. with Brad Bannon,” airs on Periscope TV and the Progressive Voices Network. Follow him on Twitter: @BradBannon