Why Is the Anti-Roe Draft Opinion Not Even More Brazen?

by Neil H. Buchanan
Roe v. Wade appears to be doomed, and it is important not to lose track of what is happening right before our eyes.  The loss of abortion rights is the loss of abortion rights.  There are other important parts to the story, but even without those other things to worry about, the stakes could not be higher.
As Professor Colb noted in her insightful column yesterday -- brilliantly titled "All Hail Justice Coathanger" -- we must remember that the Supreme Court's theocrats are set to empower governments at all levels in this country to harness the coercive powers of the state to force vulnerable people to become unwilling incubators.  As she put it: "It is difficult to imagine a more sex-based 'fuck you' than announcing that the government may lawfully force a woman (or a trans man or a nonbinary person) to go through all that pregnancy, labor, birth, and lactation involve."

Some people will die as a result, others will become grievously ill, and many poor and middle-class victims will be financially devastated.  And that is to say nothing of the emotional damage to the people who will be forced to make terrifying no-win choices about how to proceed in the Republicans' brave new world.
And, lest we forget, prosecutorial discretion all but guarantees that the targets of zealous criminal charges will be people of color and relatively poor people. Imagine being, for example, nonbinary and Black, faced with an unwanted pregnancy. Your life is hardly cushy to begin with, but while others might still be able to get away to a state where abortion is legal (for now), you know that there are people in law enforcement who would love to make an example of you. Life just became much more dangerous.

Also, there are the doctors, nurses, and the friends who try to help, all of whom might be charged with murder.  We must remind ourselves that this is no longer an abstraction.

I emphasize this point up front because I, like so many others, have been focusing my thoughts elsewhere, barely stopping to remember the immediate stakes as I rushed forward to think about other implications of what will soon happen.
Republicans, of course, are focusing on the leak of a Supreme Court document, with former Bush II fabulist/press secretary Ari Fleischer calling that an "insurrection" (with serially failed presidential candidate Mike Huckabee immediately embracing that label as well). But even those of us who are not deliberately trying to change the subject, and who are horrified by Justice Coathanger's draft opinion, cannot help but think about next steps, politics, and all the rest.

I am not saying that we are wrong to think about those other important matters. Indeed, I will be right back at it after I finish writing this paragraph. Again, however, we need to pay proper attention to the immediate consequences. We should take a moment to remind ourselves that the coat hanger is a pro-choice symbol for a reason. Again, people will die because of this. Living, breathing, sentient people with human dignity who thought that they lived in a country that protected their right to control their bodies and lives -- and the people who depend on them and love them -- are about to be sacrificed to the views of a theocratic minority that treats zygotes, embryos, and fetuses with more respect than it treats people. Full stop.
And thus I awkwardly continue. This week, I published a two-part column on Verdict asking a deliberately provocative question: "Is 'The Handmaid's Tale' a Pre-Documentary?" In the introduction to Part Two of that column, I did pause to emphasize the immediate consequences for the real human beings whose lives are directly on the line, but I was focused on other points for all but a few sentences of that extra-long column.
In any event,  because trying to undo this travesty is inherently a political exercise, we must unavoidably think about political consequences and possible follow-on legal and economic considerations. With enormous respect for those who will be harmed first, then, I now turn to those other matters. Is there any reason to think that this can be stopped? What can we reasonably predict about the upcoming political and legal battles?

The first political thought that came to mind when I heard the bombshell news went something like this: "Oh, I guess the Court's hyper-conservatives have concluded that their party's hacks have already locked down the country's election systems." Until this week, the conventional wisdom had been that Chief Justice Roberts would convince the fire-breathers not to do anything politically explosive so close to the midterms.  If the Court's right-wing radicals are set to ignore that, then I concluded that they must have satisfied themselves that their overtly political brethren running for office do not need to worry about a post-overruling voter backlash.

I suppose it is also possible that, as Justice Coathanger claims, he and his gang do not know how this will play politically. On the other hand, he is a liar. (Remember when the most memorable thing about him was his angry reaction during President Obama's 2010 State of the Union speech? Innocent days.) It is, however, possible that they jumped the gun because they simply became giddy about the prospect of doing what they have long wanted to do, and to do it all as soon as possible. Their political movement has never been known for trimming its sails, after all. If that is indeed what they were thinking, the draft opinion might be reworked in the next month or so, if the politicians in robes become convinced that they somehow need to wait a bit longer to completely overrule Roe.

I must say, however, that I reluctantly agree with what I assumed the anti-Roe 5 were thinking. With Republicans having gerrymandered and voter-suppressed their way into almost guaranteed wins later this year, and with more and more vote-counting and result-certifying mechanisms having been taken over by Republican partisans (many of whom are deranged conspiracy theorists), why would these people not think, "We've got this, no matter what"? And even now, it is becoming depressingly clear that Democrats have no idea how to turn this obvious political gift into results; so even if the midterms were going to be run fairly (a nice fantasy, but whatever), Republicans could understandably believe that this is not going to cost them.  Everyone is talking about Roe this week, and we will be back at it again whenever the ultimate decision is handed down, but by October and November, will there be any energy behind Democrats on even this most essential of issues?

When I started to read the first reports about the draft opinion, my thoughts turned from electoral politics to legal politics. In particular, Justice Coathanger pointedly chose these words: "It is time to heed the Constitution and return the issue of abortion to the people's representatives." Not "to the states," but "to the people's representatives." Setting aside how unrepresentative the representatives are at both the state and federal level, this immediately brought to mind my Dorf on Law column from this past December: "The Over/Under on the Right's Federalism Flip on Abortion."

It has always been clear that movement conservatives' embrace of states' rights was entirely strategic and expendable, so my only question was how quickly they would abandon the pretense that "letting the states decide" was their ultimate commitment. Sure enough, within hours of the publication of the draft opinion, Caroline Kitchener reported in The Washington Post that Republicans are already planning to impose a national abortion ban as soon as they retake Congress and the presidency. Only the hapless and increasingly ridiculous Chris Christie tried to maintain his "principles" by mouthing the states' rights line. Lotsa luck getting back into Republicans' good graces with that!

In what might be viewed as good news, the opinion's reference to "the people's representatives" -- federal or state -- would seem to rule out the other part of what I predicted in my December piece: a judicially created constitutional ban on abortions, no matter what politicians want to do. Again, there is not much reason to be confident that Mitch McConnell's court will not later change its collective mind and do exactly that. As Professor Dorf noted in his column two days ago, the draft opinion's attempt to say that they were "only" going after abortion but not birth control, marriage, privacy, or anything else is possibly something on which to hang one's hat in future litigation, but the distinction does not hold up even on its own terms. No one should count on Lawrence, Obergefell, Griswold, or even Loving to survive, no matter how much the draft opinion tries to claim otherwise.
Similarly, even though the holding in 2022 would be that abortion law is to be determined by the political branches, nothing would stop these motivated jurists from announcing in 2023 that states or the federal government can no more allow abortion than they can violate contracts, regulate guns, or prevent fundamentalist Christians from discriminating against anyone they hate. My guess, however, is that they will not need to do that.

There is no way that the current Congress will be able to pass a law making abortion legal across the country. Democrats have been chattering about doing so, but it is not going to happen. And even if it did, this Court's dominant wing would use the shadow docket to refuse to stay a Trump-appointed lower court judge's national injunction stopping that law from going into effect. They would then take their time and ultimately rule that somehow the people's representatives had misspoken.

If, against all odds, Democrats are able to win/hold the House, Senate, and White House in 2024 -- and assuming (against even steeper odds) that those results are certified and respected -- then we would truly have an unpredictable situation, with a Supreme Court dominated by reactionaries eagerly engaged in battle against political branches that are dominated by a coalition of timid center-right corporate Democrats, some moderates, and some progressives. Would that melange of non-Republicans play hardball with the Court, threatening to add justices in response to the Court's recent lurch toward lawlessness? Perhaps, but it is unlikely. It would, I suppose, at most give Roberts the ability to pressure his ideologically simpatico colleagues to be less openly contemptuous of the American people, which could limit the damage.

Even so, this is the same group of five people that will have the last word on the outcome of the 2024 election. They might not have to intervene, but if they do need to step in and invoke the legislatures-only gambit (or what is more formally called the "Independent-State-Legislature (ISL) Theory") to allow gerrymandered Republican state-level majorities to substitute Republican electors for Democratic electors, why would they not do it?
As a relevant aside, consider the arithmetic for 2024. Between the states that Trump won in 2020 and the fact of full Republican control at the state level in Georgia and Arizona -- even assuming that Democrats hold the governor's offices in Wisconsin, Michigan, and Pennsylvania -- Republicans could reach 271 electoral votes with only the Wisconsin legislature invoking ISL. And although it would not be dispositive, even that assumes that the all-Republican governments in Nebraska and New Hampshire would not force all of their electoral votes into the Republican column. If all state-level Republicans were to play ball in the way that Trump's people tried and failed to get them to overthrow constitutional democracy in 2020, the Republican nominee would have a lock on 310 electoral votes, no matter what happens in the voting booths. That is the hard truth.

In other words, there is no reason to think that the robed (and rabid) partisans in the Supreme Court building who are likely to vote to end Roe are worried about the 2024 election. If need be, they can tip the final result, and surely they would do so.
That means that at worst (from their standpoint), the current Democratic majorities in Congress will defy all odds sometime this year by suspending the filibuster and enacting a national law protecting abortion rights.  As above, that will merely require stays and delays until Republicans take over in 2025, repeal that law, and enact a national abortion ban.

The only remaining puzzlement is why the Coathanger coalition would bother with even such minimal modesty. After all, what is the gain from doing what I described above, that is, having the 2025 Republican one-party autocrats ban abortion entirely, rather than having the Supreme Court do it in 2022? Is it that the Court would keep its hands clean, not needing to say that abortion is constitutionally prohibited, pure and simple?  That it would all be the doing of "the people's representatives" -- the Republican ones, of course -- who had taken away women's rights everywhere in the country?
Why would those five anti-Roe voters care about that, though? They are the products of a might-makes-right mentality that they fully embrace. That the draft opinion stopped short of where it could have gone is thus a bit of a mystery.

To return to my point at the beginning of this column, this is a human tragedy of immense proportions.  Politics are the means to prevent or undo that tragedy. That our political system is so badly broken only makes the tragedy worse, because there might truly be no way out, for anyone.