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Michael A. Cohen

America’s red state legislatures are on an abortion banning bender

We are looking at a very dark future for abortion rights in America.
We are looking at a very dark future for abortion rights in America.Mickey Welsh/The Montgomery Advertiser via AP/The Montgomery Advertiser via AP

SINCE THE BEGINNING of the year, red state legislatures have been waging a direct assault on female reproductive rights. Kentucky, Mississippi, and Ohio have passed highly restrictive heartbeat laws that basically ban abortions after six weeks — a point when many women don’t even know they are pregnant. On Thursday the Missouri Senate passed legislation limiting abortions after eight weeks.

It is Georgia and Alabama, however, that are taking the lead in the race to the bottom. Earlier this month, Gov. Brian Kemp signed Georgia’s own version of a heartbeat bill, but one that could lead to the prosecution of women who have an abortion.

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The law grants unborn children “full legal recognition” which means women who are suspected of inducing a miscarriage could be prosecuted for murder. It also means that when the law is enacted, the state of Georgia will, in effect, be violating the rights of thousands of unborn fetuses who reside inside of women in the state’s jails. Even fleeing Georgia to get an abortion in another state could lead to a charge of conspiracy to commit murder.

Neighboring Alabama, however, took one look at Georgia’s law and decided “anything you can do, I can do worse.”

Republican state legislators in a state with one of the highest infant mortality rates in the country and ranked among the worst for women in America passed a law this week that would, for all intents and purposes, ban all abortions in the state, even in the case of rape and incest.

Under the Alabama law, a doctor who performs an abortion could be charged with a felony and face up to 99 years in prison.

Now this is the point when some of you might be asking: Isn’t abortion in America legal?

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It is. For now. But the larger objective of these radical bills is to get the conservative majority on the Supreme Court (thanks to new justice Brett Kavanaugh) to reverse Roe v. Wade and outlaw abortion altogether.

Even though Kavanaugh promised in his confirmation hearings to uphold Supreme Court precedents, or the doctrine of stare decisis, which admonishes judges to adhere to prior court decisions, there are growing signs that this is yet one more norm conservatives are thinking about casting aside.

In a decision last week, Kavanaugh joined the other four conservative judges in not just overruling the decision of a lower court, but in throwing out a Supreme Court decision in 1979 that allowed individuals to sue states in the courts of a different state

In a fierce dissent, Justice Stephen Breyer said the majority was on a “dangerous path” of ignoring past precedent “because five members of a later court come to agree with earlier dissenters.” He concluded by asking whether one has “cause one to wonder which cases the court will overrule next.”

He’s almost certainly referring to Roe v. Wade. If the high court can throw out a four decade-old precedent on a whim, it can certainly do the same with the controversial court decision that makes abortion legal.

On the surface, this seems unlikely. Laws as extreme and as clearly unconstitutional as the ones in Alabama and Georgia look have little chance of being upheld by the Supreme Court.

But as Elizabeth Nash of the Guttmacher Institute, an advocacy group for reproductive health rights, pointed out to me: “Abortion bans make all the other restrictions look moderate.” Twenty-week abortion bans, which have been passed in a number of states, are more restrictive than the usual benchmark for viability (around 24 weeks), but they are not as extreme as six-week bans.

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As early as next week, the Court will decide whether to take cases from Indiana and Louisiana that put in place greater abortion restrictions, including longer waiting times, increased burdens for clinics that provide abortion, and mandated ultrasound exams. All these provisions make it harder for women to get abortions — but it’s not as extreme as a total ban.

For Chief Justice John Roberts, who has increasingly become the closest thing to a swing vote on the Court, doing away with Roe altogether would likely tarnish his legacy. Dramatically narrowing abortion rights would be for him a happy compromise — a way to kill Roe without leaving any fingerprints.

Politically, this compromise would play much better for Republicans because overturning Roe would create a political backlash that would almost certainly boomerang against Republicans. Most Americans, after all, still support abortion rights. But upholding Roe while further narrowing the opportunity to get one would be unlikely to register with voters in the same way. “Until you need one and you’re calling a clinic,” says Nash, most Americans “have no idea how hard it is to get an abortion.”

The best case scenario if the Georgia or Alabama abortion laws ever get to the Supreme Court would be a reaffirming of Roe v. Wade. That likely isn’t going to happen. Instead, the high Court seems poised to keep Roe in place, but gut the law and give red states carte blanche to make abortion largely inaccessible (which is already the case in many states today).

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Quite simply, we are looking at a very dark future for abortion rights in America. The big question is whether Americans will notice enough to do something about it.


Michael A. Cohen’s column appears regularly in the Globe. Follow him on Twitter @speechboy71.