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Roe supporters say its reversal would be dead canary for democracy

With state legislatures acting as if the post-Roe world is already here, civil liberties experts say it signals a lot more than just the loss of reproductive rights.

WASHINGTON (CN) — Before the Supreme Court has made its decision in a challenge to the decades-old precedent that gave women the right to abortion, state legislatures across the country have begun operating under the assumption that Roe v. Wade is no longer the law of the land. But with state legislatures and the court acting against the wishes of the majority of Americans, Roe’s undoing could signal bigger problems. 

In December the court heard an all-out challenge to the 1973 precedent that affirmed access to abortion as a constitutional right. Roe has been challenged since its inception, but this moment is different. With a 6-3 supermajority-conservative court, it seems that at the very least abortion access across the country will be limited further. While predicting what the court will do is often a fruitless effort, state legislatures are going all in on what appears like a forgone conclusion. 

“Conservative legislators are flooding the zone with abortion restrictions, and they run the gamut from complete bans to restrictions on medication abortion,” Lindsay Langholz, director of policy and program at the American Constitution Society, said in a phone call. 

The challenge the court heard on Roe from Mississippi stems from a law that would ban all abortions after 15 weeks. One option for the court could be to stick to that law and limit all abortions after 15 weeks — a marked decrease from the currently in-use viability line, which is around 24 weeks. States like Florida, Arizona and West Virginia are already passing laws to this effect in anticipation of the court’s ruling. 

“You can tell that they expect the Supreme Court to uphold Mississippi's 15-week ban, and they want to be ready to go as soon as that kind of a limit has been approved and blessed by the court,” Jessica Arons, a senior policy counsel for reproductive freedom at the ACLU, said in a phone call. “So they're trying to cut off care immediately in that fashion. That's their most conservative bet; they think that chances are very high that they'll get at least that much.” 

Experts say the reaction from legislatures to the court’s perceived actions is rare. 

“The court for over six months has chosen not to uphold Texans' access to their constitutional right to abortion, and legislators have taken note,” Langholz said. “They have taken it as a signal to pass the bills that they need to pass so that they are in a position to ban as much abortion access as possible when the court decides and that is a pretty unusual situation that we're seeing.” 

The court’s actions in the Mississippi case are being closely watched, but some states are taking their cues from another case the court tackled this term around a Texas abortion ban. A Texas law that banned abortions after six weeks and created a bounty-hunter scheme to round up anyone who assisted in violations of the ban has spurred copycats. While the court advanced a narrow challenge to the ban, it also allowed the law to stay in place as the case pushed ahead. The Texas Supreme Court then squashed the narrow grounds on which the court said the case could proceed. 

So while the justices’ official ruling said a challenge to the controversial law could move forward, the reality on the ground is that Roe has been nullified in Texas for over six months. 

“The right to abortion doesn't meaningfully exist for people in Texas right now and it hasn't for six months,” Arons said. “To the extent states are able to copy that tactic and the Supreme Court continues to turn away and ignore it, that is going to be the case for greater and greater numbers of people throughout this country.” 

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Justice Sonia Sotomayor made this point clear in her dissent when the court refused to enforce its own ruling and send the case back to the district court to proceed. 

“This case is a disaster for the rule of law and a grave disservice to women in Texas, who have a right to control their own bodies,” she wrote. “I will not stand by silently as a State continues to nullify this constitutional guarantee.” 

Abortions in Texas dropped by 60% in the first month after the ban took place, according to data from the Texas Health and Human Services Commission. States looking to ban abortions have not been blind to this. Oklahoma might be the first state to pass a copycat bill like Texas. 

Texas’ law has forced people to seek abortion care in neighboring states. Anti-abortion lawmakers have an answer for it, too. A new proposal from a Missouri lawmaker would use the same bounty-hunter scheme concocted by Texas to stop people from seeking abortions in neighboring states. 

“I think what we're seeing with this type of bill from Missouri is that it really exposes what abortion opponents are after,” Arons said. 

She continued: “They don't want anti-abortion laws to be limited to their own state. They want to eliminate access throughout the entire country, and so they are trying to exceed their jurisdiction and their authority by somehow having their own state laws apply to other states.” 

While the Missouri law would clearly be unconstitutional, so was the Texas law, and that has been in place for over six months despite the court hearing arguments and issuing a ruling in the case. 

“On its face, it is a blatantly unconstitutional law, but so is S.B. 8,” Langholz said. “What we are seeing are state legislators pushing and pushing to see how much they can get away with and given the current supermajority on the Supreme Court, I fear what the answer is because right now there is significant damage that could be done by states.” 

An analysis from the Center for Reproductive Rights found that if Roe was limited or overturned, abortion would be prohibited in 24 states and three territories. Another analysis from the Guttmacher Institute said the number could be as high as 26 states. Meanwhile, a majority of Americans — 59% — say abortion should be legal in all or most cases. Experts point to a lack of political accountability and gerrymandering as an explanation for why a majority opinion could be overrun by the minority. 

“All these states are deeply conservative and believe they are immune from political accountability,” said Lawrence Gostin, director of the World Health Organization Collaborating Center on National & Global Health Law and faculty director of the O'Neill Institute for National and Global Health Law and Georgetown Law. “And the Court has been permissive in the face of hyper-partisan gerrymandering, which is another reason state legislators feel secure and not vulnerable to be removed from office.” 

When defending Mississippi's ban in high court oral arguments, the state’s solicitor general, Scott Stewart, made the same argument for overturning Roe that reproductive advocates do for keeping it. In Stewart’s view, a few people — the nine justices on the Supreme Court — should not impose their views on an issue with no mention in the constitution. 

“Abortion is a hard issue,” Stewart said in December. “It demands the best from all of us, not a judgment by just a few of us. When an issue affects everyone, and when the constitution does not take sides on it, it belongs to the people.”

But the success of the minority imposing legislation against the majority's wishes could point to bigger problems within American democracy. 

“The problem is that they have now rigged the system to such an extent that this is a canary in the coal mine about the state of our democracy and how frail and weak it is right now,” Arons said.

For the court, the decision to limit or overturn Roe could create the perception of the justices bending to political whims. During oral arguments in the Mississippi case, Sotomayor asked, “Will this institution survive the stench that this creates in the public perception that the constitution and its reading are just political acts.” 

Experts say no. 

“I think that the answer is no,” Langholz said. “If we are going to have meaningful reproductive freedom in all corners of America, then the court has to be reformed, but until then what we are going to see is a state by state basis of people being able to build their lives around their access to reproductive freedom or not. So you're going to see quite a huge shift in the way that we order society, to be frank, and I think that that speaks poorly of our current state of democracy.” 

If state legislatures can enact unconstitutional legislation not favored by the majority of Americans on abortion and get away with it, then other supposed constitutional rights are at risk as well if the minority in power disfavor them.

“Abortion is where it begins, that it's certainly not where it ends,” Arons said. 

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