The Road To Gilead, Con't

With Alabama on the brink of outlawing abortion and making it punishable by 99 years in prison or even the death penalty, Irin Carmon at The Cut examines where the road to Gilead may take us all and a woman named Janet Porter, who has been pushing for "heartbeat bills" for years.

The legal scholar Jack Balkin has used the phrase “off the wall,” or on it, to describe how social movements can convince people the constitution says what they want it to say. Their goals are first ignored or seen as “lunatic,” he observed, then “wrong but interesting,” then “plausible but wrong,” until, through a combination of forces, they get to being considered “probably right.” And when it comes to abortion and a changing Supreme Court, we have no idea what will be on the wall.

Heartbeat bills have never been on the wall. For nearly a half century, the Supreme Court has said that states can’t ban abortion before a fetus is viable — no earlier than 24 weeks, not six, before many women even know they’re pregnant. That’s why the focus-grouped, gray-suited architects of the anti-abortion movement believe total bans hurt their cause. They’ve read the polls that say Americans broadly support abortion in the first trimester, that they don’t want to see Roe v. Wade overturned, and that they squirm when they hear about the later abortions allowed under it: after 20 weeks, or later for reason of health or life.

“Legislation is often a process, not an event. It takes time,” the National Right to Life Committee’s James Bopp — the architect of Citizens United, and an opponent of heartbeat bills to this day— once told me. What’s off the wall might not stay there, Balkin has pointed out, and it “depends a great deal on who is willing to put their reputation and authority behind the arguments and stand up for them. If enough important and influential people say that a legal argument is not crazy but one on which reasonable minds can differ — or even the best legal argument, all things considered — then it becomes on-the-wall, although it is by no means guaranteed to succeed ultimately in the courts.”

Janet Porter intuitively understands that. She has pointed out that in 2000, the Supreme Court struck down a “partial birth abortion ban.” Then Samuel Alito replaced Sandra Day O’Connor, and in 2007, the Republican appointees on the Supreme Court pretended it wasn’t overturning a precedent when it upheld the federal version. Back on the wall.

Kennedy’s successor, Brett Kavanaugh, has already made it clear in a Louisiana procedural vote that he’s willing to throw out abortion precedent in radical fashion as long as he can sound slightly calmer than he did in his confirmation hearings. Chief Justice John Roberts, the court’s new swing vote, is no one’s idea of a moderate and, despite voting to keep Louisiana’s clinics temporarily open in a procedural move, has upheld every single abortion law that the court has considered in full. But he has tended to not want to harm the Republican Party’s chances at the ballot, which upholding a total ban might do.

Breyer’s distress might also tell us something about an abortion mystery at the court. Last Friday, the justices considered for the 13th time whether to hear an Indiana abortion restriction that bans abortions in case of a fetal disability and mandates fetal burial or cremations. This was not a close call for the vast majority of judges who threw it out or refused to rehear it, because in the words of one of them, the law “seeks to accomplish precisely what the Supreme Court has held is impermissible,” by banning abortion before viability. So why not send Indiana packing, unless there’s a chance that could change?

For now, Janet Porter has to be feeling pretty good about where she is. Once no state had a heartbeat bill; now they’re multiplying. She was a birther; now, so is the president of the United States. She enlisted conservative Jay Sekulow to work out the legal details of what she wanted to get done; so did Trump. According to the Guardian, “In late 2017, she delivered her message directly to Mike Pence, and has been invited back to the White House for an anti-abortion gathering since.”

We don’t know how judges will read those cues, and neither do the people making laws. “When you have a willing court,” Bopp said, “then you pursue what they’re willing to do.” That was six years ago, and the walls have been coming down ever since.

And now the walls are nearly down.  Abortion won't end in America of course.  Safe abortion that doesn't kill women will end in America.

[UPDATE] Alabama GOP Gov. Kay Ivey didn't hesitate to sign the bill into law this evening.