The Reckoning of 2016: The Supreme Court and Reproductive Rights

The United States Supreme Court in Washington D C USA
The United States Supreme Court in Washington D C USA

Whether you support Bernie or Hillary, how many of you want Republicans to abolish freedom of reproductive choice?

I thought so. But here's the kicker -- in much of the country, the GOP already has.

For millions of American women, freedom of choice is writ on water. And if you abandon your party's nominee, whoever that may be, millions more may suffer.

By musing aloud about punishing women once the GOP completes its relentless drive to stamp out abortion rights, Donald Trump has reminded us yet again of the stakes in this election. On the issue of choice, as with so much else, our national reckoning is now at hand and cannot be wished away.

Put simply, the president who selects Antonin Scalia's successor will determine the future of reproductive rights. That is not hyperbole -- it is already graven on the American landscape.

Start with access to a safe and legal abortion. For the less privileged women in most American states, this right is close to extinction.

Across the country abortion clinics are closing at a record pace. A little over 700 remain -- 43 years after Roe v. Wade, 90 percent of American counties have no clinics at all. In a large swath of red states, 400,000 women of reproductive age live more than 150 miles from the nearest clinic. Five states -- Mississippi, Missouri, North Dakota, South Dakota and Wyoming -- have just one.

So how did this happen?

A principal cause is GOP-sponsored state laws which shut down clinics by imposing unnecessary and onerous requirements. Some mandate prohibitively expensive renovations so that clinics resemble hospitals for no good reason -- broader hallways, for example. Others demand that doctors performing abortions have admitting privileges at a nearby hospital -- difficult at best, and impossible in areas where the hospital refuses.

"One does not have to be a keen observer to fear for women when Republicans start protecting them."

If these laws are upheld by the Supreme Court, the impact will not simply be to cement them, but to encourage the GOP to expand their reach into yet more states. And the obliteration of choice will proceed apace.

The transparently bogus rationale for such laws is the tender concern of Republican legislators for women's' health. Yet abortion is one of the safest of all medical procedures, with a complication rate below 1/10 of 1 percent. By comparison, a routine colonoscopy is riskier. Oddly enough, there is no crusade within the GOP to stem the nightmare of colonoscopy.

The real agenda, of course, is finding a palatable rationale for gutting Roe v. Wade. After the passage of one such law, the Lieutenant Governor of Texas tweeted a map of all the clinics which would have to close, capped with an exultant message: "We fought to pass S.B. 5 thru the Senate last night, & this is why!"

Less exultant were the poor or rural women denied access to a safe abortion. In the name of womens' health, Republicans give these women three choices -- bear unwanted children, travel sometimes prohibitive distances, or run the risk of an illegal abortion. One does not have to be a keen observer to fear for women when Republicans start protecting them.

One very keen observer -- a distinguished Republican federal judge -- has sliced through the hypocrisy.

Judge Richard Posner is a renowned conservative legal scholar. As a judge on the United States Court of Appeals, he was faced with a similar law from Wisconsin, requiring doctors at abortion clinics to obtain admitting privileges at hospitals within a 30-mile radius -- and to do so in three days. In an opinion striking down the law, Posner shredded the pretense that the Republican legislature was protecting women's health:

"Wisconsin," Posner writes, "appears to be indifferent to complications of any other outpatient procedures, even when they are far more likely to produce complications than abortions are." The alleged health concerns, he finds, are in fact "nonexistent." In contrast the impediments to abortion are very real: "[M]ore than 50% of Wisconsin women seeking abortions have incomes below the federal poverty line... For them a round trip to Chicago... may be prohibitively expensive. The state of Wisconsin is not offering to pick up the tab, or any part of it."

He then cuts to the quick. "A great many Americans are passionately opposed to abortion - as they are entitled to be... Some of them proceed indirectly, seeking to discourage abortion by making it more difficult for women to obtain. They may do this in the name of protecting the health of women who have abortions, yet... the specific measures they support may do little or nothing for health but rather strew impediments to abortion."

Finally, Posner eviscerates the cynical pretense behind requiring admitting privileges -- the usual method used to shut down clinics. This requirement, he writes, "cannot be taken seriously as a measure to improve women's health because the transfer agreements that abortion clinics make with hospitals, plus the ability to summon an ambulance by phone call, assure the access of such women to a nearby hospital in the event of a medical emergency."

As a particularly egregious example of this legislative masquerade, Posner cites the Texas law praised by its lieutenant governor for its effectiveness in shutting down clinics. Which brings us back to the judicial stakes in this election -- the constitutionality of that very law is now before the United States Supreme Court.

The law reduced the number of clinics in Texas from 40 to 10, all clustered in four metropolitan areas. No clinics are located west or south of San Antonio, an area larger than California. Yet despite -- or perhaps because of -- the fact that it places abortion out of reach for women in most of Texas, a conservative panel of federal appeals judges upheld the law. After all, the court said, women in West Texas could always travel to New Mexico.

But the context for this law makes its impact even worse. Other Texas laws require most women to get a sonogram at least 24 hours prior to an abortion, from the same doctor, and require all abortions past 16 weeks to be done in surgical centers -- the nearest of which is in San Antonio. Ironically, the inevitable overcrowding of those clinics which remain has caused delays which, in some cases, mean that women seeking an abortion pass the 16-week deadline -- a nasty Republican Catch-22.

The legal test for such laws is clear: whether they impose an "undue burden" on a woman's right to an abortion under Roe v Wade. Obviously, they do -- as the Texas law exemplifies, their impact is not simply "undue," but draconian.

Yet at the hearing before the Supreme Court, the justices appeared to be divided 4-4, with the four Republican justices -- Roberts, Alito, Thomas and Kennedy -- in favor of upholding the law. Such a tie will leave Texas' anti-choice scheme in place. And had Scalia lived, there is no doubt that the court's ruling would have protected such laws in every state which has passed them -- including the Wisconsin law struck down by Judge Posner. As matters stand, freedom of choice for millions of American women hangs in the balance, awaiting the selection of the court's ninth justice.

There could be no better illustration of how critical it is that a Democrat appoint Scalia's successor. Yet this same term provides another example -- a case which threatens to limit access to contraception under the Affordable Care Act.

Under a prior ruling of the Roberts court, an employer can claim a religious exemption to the ACA's mandate to provide contraception as part of an employee's health insurance plan. To opt out, all the employer need do is notify the Department of Health and Human Services that it will not subsidize a plan that offers contraception. At that point, the government can require the insurer to offer contraception using funds not derived from the employer who objects.

"A Republican president can not only narrow a woman's access to abortion, but to contraception, simply by restoring the court's conservative majority."

One would think this would satisfy employers who object to contraception. Not so. Seven religiously affiliated employers brought suit challenging this compromise, claiming that being required to opt out of providing contraception in itself violates their religious freedom. Or, more starkly, that their concept of religious freedom entitles them to block the government and their insurance company from providing contraception to their employees.

Remarkably, the Supreme Court hearing made it clear that the same four Republican justices agree. Their sole concern was Orwellian: that by requiring the employers to opt out of providing contraception, the ACA was making them complicit in the provision of contraception by others.

This narrowness of view was truly striking. Instead of focusing on a woman's right to contraception, both Chief Justice Roberts and Justice Kennedy accused the government of "hijacking" the objectors' insurance plans. In the name of "religious freedom," the four justices would empower the objectors to impose their religious beliefs on others -- a dangerously elastic concept with implications well beyond the present case.

Again, Scalia would have been the fifth. And, again, the resolution of this issue may well depend on who appoints his successor -- though a subsequent order suggests that the court is searching for an alternative to let itself, and the religious objectors, off the hook of a tie vote which would effectively uphold the opt out. Whatever the case, it is clear that a Republican president can not only narrow a woman's access to abortion, but to contraception, simply by restoring the court's conservative majority.

But the long-term impact could be even more severe. For both Donald Trump and Ted Cruz, repealing Roe is an explicit litmus test for appointing the next justice. Indeed, Trump's recent lapsus linguae about punishing women obscures the fact that Cruz is even worse. Piously, Cruz responded that, far from prosecuting women, he would "affirm their dignity and the incredible gift they have to bring life into the world." Care for a translation? Here it is -- Ted Cruz wants to impose this "gift" on the adolescent victims of rape or incest.

As if all this were not enough, the election of a Republican president would diminish reproductive rights more broadly yet, threatening women's health in the bargain. In the most obvious example, Republicans in Congress and state legislatures are attempting to hamstring Planned Parenthood by cutting off public funds to organizations that provide abortions -- even though abortion is a small portion of services which include contraception, sex education, and treatment for sexually transmitted diseases.

Without Planned Parenthood, these essential services could become scarce to unavailable. The proponents' list of supposed alternatives available to women smacks of dark comedy: for example, Florida helpfully specified elementary and middle schools, dental practices and, believe it or not, an eye doctor -- leaving one to wonder whether Republican legislators require not only sex education, but anatomical instruction.

One struggles to locate any benefit to women. But that, of course, is not the point. The real point is this: the Republican Party is carrying out a fundamentalist religious agenda in which it is the father who knows best.

Thus the election of a Republican president in 2016 would erode reproductive rights and threaten Roe itself. The next president could appoint up to four new justices, transforming the law for generations to come. So it is time for us to ask again those fundamental questions which informed the battle for choice from its beginnings:

Should concern for fetal life cause us to order women to have children because their birth control has failed -- the predicate for the majority of abortions?

Should religious opposition to contraception strip women of protection from unwanted pregnancies?

Should we force families to have more children when they can't support the ones they have?

Should the law require women traumatized by rape or incest to become mothers against their will?

Should we compel pregnant women in desperate circumstances to seek illegal abortions which endanger their life and health?

Should pregnant teenagers forfeit their future to an accidental pregnancy, thus becoming, as they often do, depressed and undereducated mothers with minimal parenting skills?

Should we consider a woman's life or health a fair exchange for imposing compulsory motherhood in high-risk pregnancies?

Should we take our moral cues from a movement which -- far too often -- seems to love our children most before they're born?

Should we, in short, treat pregnant women as losers in God's -- or nature's -- lottery?

And, finally, should we tacitly support the GOP's war on reproductive rights because our preferred candidate did not win the Democratic nomination?

That question -- like the others -- should answer itself.