As the election year starts, over 200 lawmakers are taking an ideological stand against abortion.
Two days into the 2020 election year, Republicans are staking their ground: They’re coming for Roe v. Wade.
In an amicus curie brief released Thursday, 205 Republican lawmakers, including 39 senators, asked the Supreme Court to consider whether Roe, the 1973 landmark Supreme Court case protecting the right to an abortion, “should be reconsidered and, if appropriate, overruled.”
They’re weighing in on June Medical Services v. Gee, a key abortion-related case set to be heard in early March determining whether the state of Louisiana can require abortion providers to have admitting privileges at a local hospital. Advocates predict that, if the Louisiana law is upheld, two of the remaining three abortion clinics in the state will close down.
Abortion rights advocates sounded the alarm Thursday, warning that the legal battle over Roe is now in full swing. “The anti-choice movement is no longer trying to hide their real agenda,” said Ilyse Hogue, president of NARAL Pro-Choice America, in a statement. “They are gunning to end Roe, criminalize abortion and punish women. If it wasn’t clear why we fought like hell to stop [Supreme Court justice] Brett Kavanaugh’s confirmation before, it should be crystal clear now.”
But beyond the specifics of this case, the brief represents an ideological statement for Republicans as they enter what is expected to be a bitterly fought election year. And judging by the brief, the party has its sights set squarely on eliminating the right to legal abortion.
While several Republican senators in hotly contested reelection battles such as Susan Collins (ME) and Martha McSally (AZ) withheld their support, two anti-abortion House Democrats, Dan Lipinski (IL) and Collin Peterson (MN) added their names to the brief with their colleagues across the aisle.
With Roe at stake, all eyes will be on the Supreme Court for oral arguments in this case on March 4 — and on Republican lawmakers on the campaign trail in 2020.
June Medical Services v. Gee will be the first big abortion case heard by the new court
Gee will be the first abortion case heard by the Supreme Court since Kavanaugh was appointed to the bench last year. The case centers on a 2014 Louisiana law requiring doctors who perform abortions to have admitting privileges at a local hospital. Abortion advocates argue that such privileges are unnecessary because complications from abortion care are relatively rare and if a serious medical emergency occurred during an abortion, a patient would be transported to a local hospital which would have no choice but to administer treatment regardless of any admitting privileges.
The law, advocates say, is what’s known as a “TRAP” (targeted regulations on abortion providers) law, or a law that looks at first glance like a regulation to increase safety for abortion patients but is really designed to make it harder for clinics to operate.
The case is essentially a relitigation of the 2016 decision in Whole Woman’s Health v. Hellerstedt, which struck down a nearly identical law in Texas. Why would the court take up nearly the same case just three years after ruling on essentially the same issue? Quite simply, it’s Kavanaugh’s presence on the bench, as Vox’s Anna North and Ian Millhauser explained:
But the Supreme Court today is different from what it was in 2016. Gee is the first abortion-related case the Supreme Court will hear on the merits since Justice Brett Kavanaugh replaced the more moderate conservative Justice Anthony Kennedy. For many years, Kennedy was the Court’s “swing” vote on abortion — typically voting to uphold abortion restrictions but also recoiling at laws that cut so deep into the right to an abortion that they virtually nullified it.
Kavanaugh, by contrast, is overwhelmingly likely to vote with his conservative colleagues to uphold the abortion restriction at issue in Gee. The Gee decision may not be the final straw for Roe v. Wade — indeed, it is fairly likely that the Court will prefer to dismantle the right to an abortion in incremental steps. But it is likely to, at the very least, be the beginning of the end.
Republican lawmakers, however, don’t appear to want to settle for an incremental rollback of abortion rights in the US. While making arguments on several key provisions of the case, such as whether June Medical Services has standing to bring the suit in the first place, the Republican brief argues that Roe is a “radically unsettled precedent” while pointing out that two of the original justices who joined the majority in the case have since repudiated their ruling. “Roe’s jurisprudence has been haphazard from the beginning,” reads the brief. “Roe did not actually hold that abortion was a ‘fundamental’ constitutional right, but only implied it.”
The brief also asked the court to reconsider the 1992 ruling in Planned Parenthood v. Casey which upheld Roe but allowed states to enact some restrictions on the medical procedure, as long as they didn’t impose an “undue burden.” The 207 lawmakers, however, argue that federal courts have struggled to consistently apply that standard. “After two decades of inconsistency, the Court officially disavowed ‘fundamental right’ status for abortion and strict scrutiny review, adopting instead an ‘undue burden’ test in Casey,” reads the brief. “As a result, consistency and predictability continue to be undermined as federal courts struggle to apply the Roe/Casey standard.”
Abortion remains a divisive electoral issue
The majority of the country — 58 percent of Americans, according to a 2018 Pew poll — believe abortion should be legal in all or most cases. But that support belies an increasingly partisan division: While 36 percent of Republicans believe abortion should be legal in all or most cases, over 75 percent of Democrats believe the same.
As North explained last year, that wasn’t always the case; in “the 1970s, politicians’ views on abortion didn’t break down along neat party lines”:
The story of the abortion debate since the 1970s is one of party leaders moving farther and farther apart on the issue. The reasons, scholars and activists say, are a combination of grassroots activism and establishment political strategy. The results are a landscape that would be unrecognizable to many voters in 1982 — or even five years ago.
And in that increasingly polarized atmosphere, anti-abortion activists have seen an opening. They — and by extension the Republican party — have been building toward this Supreme Court showdown for the better part of the last decade, as North explained:
At the turn of the decade, statehouses went red across America. Republicans gained control of 11 state legislatures and increased their majorities in three more; in some places, like Alabama and North Carolina, they erased Democratic majorities that had existed since the 19th century. When the votes were counted, the GOP had added 680 seats in state legislatures around the country.
On abortion, the impact was swift and powerful. Teresa Fedor, a Democrat who has served in the Ohio legislature since 2001, remembers that before 2010, “Democrats were able to really have an impact on policy.” After 2010, when Republicans took control of the state House of Representatives and the governors’ mansion, she told Vox, it was “a full-on assault against women’s reproductive rights.”
In the next year alone, five anti-abortion bills passed in Ohio, Fedor said. The same thing happened around the country: Overall, more abortion restrictions were passed in 2011 than in any year since Roe established a right to the procedure in 1973.
In fact, the law in question in Gee was part of that initial anti-abortion wave, passing the Louisiana state legislature in 2011. It’s a reminder that elections have consequences, a lesson abortion advocates have recently taken to heart.
Reproductive rights advocates took direct aim at the lawmakers who signed on to the bill Thursday.
“These anti-abortion politicians are making it very clear — they want the Supreme Court to effectively ban abortion, precedent be damned,” said Samuel Lau, director of Federal Advocacy Media for Planned Parenthood Votes in a statement specifically naming Lipinski and Sens. Tillis (R-NC), Ernst (R-IA), and Cornyn (R-TX). “To the members of Congress who signed on to this amicus brief: Brace yourselves for the consequences you will face at the ballot box in November.”
But even after losing big with suburban women in 2018, the 205 Republican signees don’t seem concerned — instead, they’re into their anti-choice bona fides. After all, Republicans have been winning elections on abortion for decades, and judging by Thursday’s brief, a good many of them are counting on doing it again in 2020.
Author: Katelyn Burns
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