Hawley’s call to arms is exactly what abortion foes do not need if they hope to win over the Court’s current justices.
The decision in June Medical makes clear that there is a path to overturning Roe v. Wade—if and only if the anti-abortion movement has the patience and savvy to see it through. But Trump—who has given anti-abortion activists more short-term wins than any other president—has fostered a culture of instant gratification, persuading state legislators to throw caution to the wind and pass sweeping bans now.
After all, this is a president who rose to power on the promise that the politically impossible is realistic if grassroots conservatives invest enough. His 2016 election victory defied expectations. He has since stumbled from scandal to scandal without seeing his (generally low) approval numbers crater. At times, the rules of American politics do not seem to apply to him.
Red-state lawmakers hoped to play the same game. Nine states have introduced laws banning abortion once a fetal heartbeat can be detected—which usually happens in the sixth week of pregnancy. Alabama’s ban begins at fertilization. None of these laws makes exceptions for rape or incest. These laws do not appeal to public majorities. No one designed them that way. And they did not seem likely to appeal to the Supreme Court. But that wasn’t the point: Trump had won by rallying his base, not playing to the middle, and anti-abortion activists wanted to do the same thing.
Trump’s message is clear: What experts say, and what the media confirm, does not matter. This is the stand he has taken on wearing a mask during the COVID-19 pandemic and reopening businesses while cases climb. It’s the position he’s taken on the removal of Confederate monuments at a time of reckoning for racial justice. Abortion foes, too, believed that the old predictions about what the Supreme Court would do no longer apply.
The Supreme Court showed Monday that these guesses were wrong, at least for now. In June Medical, Roberts outlined his skepticism of abortion rights, suggesting that if the Court were working with a blank slate, he would have voted to uphold Louisiana’s law. And Roberts’s version of the undue-burden test—the controlling rule in abortion cases—seems far less protective of abortion rights than the approach the Court has taken in recent years.
Just the same, Roberts has a reputation for caring about the Court’s legacy—and about proving that the Court is not a partisan institution. Regardless of how skeptical Roberts is about abortion rights, he could find no way to distinguish Louisiana’s law from the Texas statute the Court struck down in 2016. And he felt that he could not seriously claim to care about precedent if he let this statute stand.
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