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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THE TRUTH...

is the first thing despots go after. An unwavering commitment to it is probably what draws you to Mother Jones' journalism. And as we're seeing in the US and the world around, authoritarians seek to poison the discourse and the way we relate to each other because they can't stand people coming together around a shared sense of the truth—it's a huge threat to them.

Which is also a pretty great way to describe Mother Jones' mission: People coming together around the truth to hold power accountable.

And right now, we need to raise about $400,000 from our online readers over the next two months to hit our annual goal and make good on that mission. Read more about the information war we find ourselves in and how people-powered, independent reporting can and must rise to the challenge—and please support our team's truth-telling journalism with a donation if you can right now.

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