Is a Major Abortion Showdown Finally In Our Near Future?

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It’s been obvious for a while that sometime soon the Supreme Court is going to take on another major abortion case. So far, what’s kept it from happening is probably the fact that both sides are unsure how it would go. Nobody wants to take the chance of a significant decision going against them and becoming settled law for decades.

But Ian Millhiser suggests today that this might be about to change. Conservatives have been unusually aggressive over the past four years in testing the limits of the law at the state level, and yesterday the Fifth Circuit Court upheld a recently-passed Texas statute that had the effect of shutting down all but eight abortion clinics in the entire state. Ominously, Millhiser says, the majority opinion went to considerable pains to acknowledge that its reading of the law was different from that of other circuit courts:

That’s what’s known as a “circuit split.”….Judge Elrod’s lengthy citation — which includes one case that was decided three years before the Supreme Court built the backbone of current abortion jurisprudence in Planned Parenthood v. Casey — is an unusually ostentatious and gratuitous effort to highlight the fact her own decision is “in conflict with the decision of another United States court of appeals on the same important matter.” If anything, Elrod is exaggerating the extent to which other judges disagree with her.

That’s a very strange tactic for a judge to take unless they are eager to have their opinion reviewed by the justices, and quite confident that their decision will be affirmed if it is reviewed by a higher authority. By calling attention to disagreement among circuit court judges regarding the proper way to resolve abortion cases, Elrod sent a blood-red howler to the Supreme Court telling them to “TAKE THIS CASE!”

Elrod, it should be noted, is not wrong to be confident her decision will be affirmed if it is heard by the justices. Justice Anthony Kennedy, the closest thing the Supreme Court has to a swing vote on abortion, hasn’t cast a pro-choice vote since 1992. As a justice, Kennedy’s considered 21 different abortion restrictions and upheld 20 of them.

Conservatives, including those on the Fifth Circuit, are increasingly confident that Anthony Kennedy’s position on abortion has evolved enough that he’s finally on board with a substantial rewrite of current abortion law. And since the other four conservative justices have been on board for a long time, that’s all it takes. Kennedy might not quite be willing to flatly overturn Roe v. Wade, but it’s a pretty good guess that he’s willing to go pretty far down that road.

We are rapidly approaching a point in half the states in America where abortions will be effectively available only to rich women. They’ll just jet off to clinics in California or New York if they have to. Non-rich women, who can’t afford that, will be forced into motherhood whether they like it or not. At which point conservatives, as usual, will suddenly lose all interest in them except as props for their rants about lazy welfare cheats.

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SIX TRUTHS

Reclaiming power from those who abuse it often starts with telling the truth. And in "This Is How Authoritarians Get Defeated," MoJo's Monika Bauerlein unpacks six truths to remember during the homestretch of an election where democracy, truth, and decency are on the line.

Truth #1: The chaos is the point.

Truth #2: Team Reality is bigger than it seems.

Truth #3: Facebook owns this.

Truth #4: When we go to work, we're in the fight.

Truth #5: It's about minority rule.

Truth #6: The only thing that can save us is…us.

Please take a moment to see how all these truths add up, because what happens in the weeks and months ahead will reverberate for at least a generation and we better be prepared.

And if you think journalism like Mother Jones'—that calls it like it is, that will never acquiesce to power, that looks where others don't—can help guide us through this historic, high-stakes moment, and you're able to right now, please help us reach our $350,000 goal by October 31 with a donation today. It's all hands on deck for democracy.

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