Almost five decades ago, the U.S. Supreme Court ruled that abortion is a constitutionally protected right, within reason. The issue has continued to roil America, but strong majorities have consistently said abortion should be legal, with restrictions. This is exactly what Roe v. Wade established in 1973, setting a fetal-viability standard at roughly 24 weeks.
Now, Roe is in existential danger. A Supreme Court that is tilted far to the right of the nation agreed last week to review a Mississippi law that bans most abortions at 15 weeks, far in advance of fetal viability — a law intended as a direct challenge to Roe, passed in the belief that the current court might use it as the platform to overturn this crucial right for women. Chillingly, it might.
Contrary to the strawman stereotype promoted by abortion-rights opponents, most Americans who support abortion rights don't cavalierly shrug off the seriousness of choosing to end a pregnancy. Instead, they recognize that real life seldom offers simple options — that sometimes, none of the choices are ideal. But the ability to make one's own choices, especially regarding one's own body and one's own future, should be sacrosanct.
Again, within reason. The viability standard set by the Roe decision guarantees full abortion rights in the first trimester, allows limited state restrictions in the second trimester, and permits full bans in the third. In essence, it recognizes that what begins as part of a woman's body crosses the threshold to become a separate, viable being prior to birth, at the point when the fetus could theoretically survive outside the womb. (Notwithstanding conservative-promoted myths that so-called "late-term abortions" are rampant, they are in fact vanishingly rare, performed only during life-threatening medical emergencies, and virtually never as late as alleged.)
Such parsing between biology and the law is inexact, but there's nothing radical or unreasonable about it. Yet Mississippi and other red states seek to make abortion effectively illegal at any point during pregnancy. Some laws, including a court-blocked Missouri "fetal heartbeat" statute, would set limits on abortion rights so early in the pregnancy that many women would not even know they're pregnant until it's too late to legally choose an abortion. Which, of course, is the whole point.
A sizable religious minority of Americans, and the Republican Party that represents them, believes strongly that life begins at conception. That belief, too, is not radical or unreasonable as a religious or philosophical stance. But in real-world practice, it effectively subverts the rights of a fully formed, thinking individual to those of a clump of cells inside her body that could not survive outside it. There is no male equivalent to this biology-based reduction of individual rights. Should Roe fall, only women would directly suffer for it.
History and common sense show that poor, abused or otherwise vulnerable women did, and would, suffer disproportionately. Rolling back Roe wouldn't ban abortion nationally but would just allow individual states to ban it. Woe to the woman without the freedom and resources to travel should she live deep in one of the states that chose to reduce her citizenship status to that of a biological vessel — a "host," as one anti-abortion-rights lawmaker in Oklahoma tellingly put it a few years ago. Missouri would almost undoubtedly become one of those "host" states.
Red-state Republicans have long chipped around the edges of Roe with restrictions like mandated counseling, paternal approval rules and harassing use of building codes. But laws seeking a straight-up ban on abortions before fetal viability, in direct contradiction of the Roe decision, have always been blocked by the lower courts, and the Supreme Court has always declined to hear them — until now.
The fact that the most conservative court in modern times has agreed to review the Mississippi law doesn't bode well for this crucial right. And the specific question the court has agreed to hear, unlike in previous cases, isn't about some peripheral issue, but is one that touches directly at the heart of Roe: "whether all pre-viability prohibitions on elective abortions are unconstitutional."
The court's 6-3 conservative majority is in place because of the Republican Party's no-holds-barred maneuvers to stack it, including eliminating the filibuster for high court appointments and effectively stealing a seat that should have been filled by former President Barack Obama. Abortion was the driving issue in that relentless campaign because it's the driving issue of today's GOP.
Gone are the days when there was such a thing as a pro-choice/pro-liberty Republican (or an anti-abortion-rights Democrat, for that matter). Few if any issues offer such a bright line between the parties, though the intensity isn't the same on both sides: Abortion as an issue tends to rally conservatives more than liberals.
That could change should American women suddenly be flung back to the age of back-alley abortions and second-class citizenship. If there's a silver lining to the current threat, that's it. Today's extremist Republican Party has survived despite alienating itself from mainstream America on issues like tax policy and guns. But to peel back this fundamental right of privacy would likely be a bridge too far, especially for the millions of women whose lives it would impact in the most direct and intrusive ways imaginable.
The court's decision could well come down shortly in advance of the 2022 midterms. If that worst-case scenario happens, the nation will have a timely reminder that elections do, in fact, have consequences.
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