The Insidious Unraveling of Abortion Rights in America | Opinion

Ohio lawmakers have offered a glimpse of a future without Roe v. Wade. A proposed bill, HB 565, would prohibit all abortions, even in cases of rape, incest, or a threat to a woman’s life. By treating abortion as a form of homicide, the law might subject women and doctors to life imprisonment or even the death penalty.

But not all abortion foes back the bill, even in Ohio. By understanding the fault lines revealed by HB 565, we can see how the Court will likely dismantle abortion rights—and why a post-Roe world will be dangerous for abortion opponents.

For the most part, larger anti-abortion groups don’t oppose HB 565  not because it is extreme, but because abortion foes think it will backfire. With the departure of Anthony Kennedy, the Court seems likely to substantially undercut abortion rights. HB 565, like heartbeat bills passed in Ohio and other states, gives the Court a perfect opportunity to do just that. But the justices likely will not want to move so fast.

Read More: What Is the Heartbeat Bill? Ohio House passes restrictive abortion bill—Again

Following Justice Brett Kavanaugh’s explosive confirmation hearings, the Court’s reputation as a non-partisan institution took a hit. Gallup polling had already shown that while the judiciary enjoys more support than other branches of government, public trust in the Court has faded. After Kavanaugh made what some saw as thinly-veiled threats against Democratic Senators, some wondered if the Court faced a full-blown legitimacy crisis. In a series of speeches, Chief Justice John Roberts has tried to reassure the public that the Court remains above the political fray.

If the Court immediately overturns Roe, Roberts’ efforts to salvage the Court’s reputation will fail. Legal commentators have certainly criticized both the 1973 decision and the precedents following it, including Planned Parenthood v. Casey, the case that sets out the current law. But recent decisions have not even hinted at the possibility that Roe will be gone, much less explained why the justices think that the Constitution does not recognize a right to abortion. The kind of go-slow approach favored by larger anti-abortion groups would give the Court the chance to erode abortion rights more slowly—and to make the case against abortion rights over time.

And the tools needed for a slow attack on Roe are not hard to find. Casey treats abortion regulations as unconstitutional if they place a substantial obstacle in the path of a woman seeking abortion. The so-called undue burden test is notoriously ambiguous. The Court could easily hold that most abortion restrictions do not create an undue burden without saying anything about the fate of Roe.

Strangely enough, abortion-rights supporters would prefer a decisive strike. Voters would understand what the Court had done and could choose to protest or go to the polls. A murky decision, by contrast, might confuse everyone too much to create a backlash. Abortion foes would celebrate an end to the 1973 decisions, political fallout be damned. But the Supreme Court is not likely to give anyone what they want. We are far more likely to see a stealth overturning of Roe than a clear, fatal blow.

What’s more, the anti-abortion movement is not prepared for a decision overturning Roe. For decades, the terms of the debate have often favored abortion foes. Many Americans support legal abortion but favor some restrictions on the procedure. As long as Roe is law, abortion opponents could champion relatively popular regulations—and define abortion-rights supporters as absolutists unwilling to compromise.

If the Court overturns Roe, the rules of engagement will change entirely. Abortion foes will have to decide whether to demand punishment for women. Activists will have to define what they even mean by “abortion” in the first place. Does it include some contraceptives, such as IUDs or birth-control pills that some believe prevent implantation of a fertilized embryo? What about in vitro fertilization? Answer these questions the wrong way, and the anti-abortion movement could galvanize more support for reproductive rights than we have seen in decades.

Predictions about the demise of Roe are largely sound. But we should not expect anything soon. And that may be just what the anti-abortion movement needs.

Mary Ziegler is the Stearns Weaver Miller Professor at Florida State University and the author of several books on the American abortion conflict, most recently Beyond Abortion: Roe v. Wade and the Fight for Privacy (Harvard, 2018.)

The views expressed in this article are the author's own.​​​​​

GettyImages-Roe-Wade-Abortion-Rights-Threat-Supreme-Court-1074950782 Justices of the United States Supreme Court pose for their official portrait at the in the East Conference Room at the Supreme Court building November 30, 2018 in Washington, DC. Chip Somodevilla/Getty Images

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