For all the scariness of fetal “heartbeat” laws in states like Georgia, Ohio, Mississippi and Kentucky or the near-total ban on abortion approved by Alabama lawmakers Tuesday, the bigger threat to women’s reproductive rights may have been contained in a fairly obscure Supreme Court decision regarding whether states can be sued in the courts of other states. The decision, issued Monday in Franchise Tax Board of California v. Hyatt, managed something that anti-abortion advocates have been counting on since Republican presidents started packing the court with hard-right conservatives — a retreat from the principle of “stare decisis” or respect of precedent.
As Justice Stephen G. Breyer observed in his dissent in that 5-4 ruling, the majority happily ignored precedent (specifically, a 1979 ruling that has allowed just 14 such lawsuits) without good justification, a practice that he rightly views as destabilizing the law. “To overrule a sound decision … is to encourage litigants to seek to overrule other cases; it is to make it more difficult for lawyers to refrain from challenging settled law; and it is to cause the public to become increasingly uncertain about which cases the court will overrule and which cases are here to stay.”
Justice Breyer didn’t mention Roe v. Wade in his dissent, but he hardly needed to given how much attention has been given GOP-controlled states as they breed anti-abortion measures — blatantly illegal ones — at a rabbit’s pace. It’s no coincidence that efforts like the heartbeat bills came to the fore after President Donald Trump’s conservative appointees joined the Supreme Court. But the last bulwark against overturning Roe has been stare decisis. Roe has been on the books since 1973. When Brett Kavanaugh was asked about Roe during his confirmation hearings last year, he described it as “settled law as a precedent entitled to respect.” That response earned him the support of Maine Sen. Susan Collins and with it his spot on the nation’s highest court. Yet here he was standing with the conservative majority in the Franchise Tax Board decision, which didn’t seem nearly so respectful of “settled law.”
Fetal heartbeat measures — and many other anti-abortion laws (at least 28 state legislatures introduced abortion bans so far this year, according to the Guttmacher Institute) — are blocked by Roe, which broadly guarantees a woman’s right to choose but has weathered numerous restrictions — gestational limits, bans on public funding, physician or hospital supervision, waiting periods, mandated counseling and others. But not outright bans or anything so egregious as to limit the procedure to the first six weeks of pregnancy, a point at which women often aren’t even aware that they are pregnant. Overturning Roe would change all that — perhaps even overnight as some states have approved abortion restrictions contingent on that possibility.
The Franchise case wasn’t even the first blow against the rule of precedent by the Supreme Court. Justice Elena Kagan observed last year in Janus v. AFSCME, when the court similarly ignored longstanding precedent in deciding that unions could no longer impose “agency fees” on non-union members, that the majority was willing to overthrow “a decision entrenched in this Nation’s law — and in its economic life” for more than 40 years. “As a result,” Justice Kagan added, “it prevents the American people, acting through their state and local officials, from making important choices about workplace governance.”
Still, the Supreme Court might just allow the states to keep whittling away at reproductive rights even as lower courts block six-week bans. Forcing women to view an ultrasound image of their fetus no more than 18 hours before an abortion, for example, as a 2016 Indiana law requires, might survive its ongoing federal court challenge. There are all kinds of ways to move the country closer to the dystopian future imagined by the Handmaid’s Tale where women and their reproductive systems are a regulated commodity. Anti-abortion forces recognize that President Trump has stacked the deck in their favor. Now, it’s just a matter of how it plays out — bit by bit or with a dramatic reversal courtesy of the conservative majority.
In either case, Americans ought to be alarmed by that prospect. While most polls suggest a majority of Americans still favor keeping abortion legal, at least one recent poll found an uptick in people who self-identify as “pro-life” — to 47 percent, the same percentage that identify as “pro-choice,” according to the annual Marist survey released earlier this year. Is the stage being set for a dramatic change in the law? Voters will get a chance to express their own opinion in the 2020 election — if it isn’t too late.