Does SCOTUS’s consistent inaction on the issue mean that we’ve already lost our right to choose?
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From the moment that Trump was officially declared the 2016 election winner, I was fairly certain that Roe v. Wade was doomed. With an immediate opening on the Supreme Court to fill and at least three justices looking to be on the verge of retirement, it was a foregone conclusion that the GOP’s new darling would be tipping the nation’s highest court dramatically to the right .
When the end of Roe did arrive, I expected a dramatic, unmistakable moment that would sound across the nation with the clang of a gong. It would be via a decision to uphold so-called “fetal pain” as a new standard for protecting a fetus rather than the current viability standard, or maybe a revisit to TRAP laws like the one in Mississippi and the approval to close a final clinic and leave one state completely without abortion services. I thought it would be clearly defined, and met with protests in the streets and drones dropping abortion pills from the skies.
But what if the reality is different? What if SCOTUS ends abortion not with a slit of the throat but by a death of 1,000 paper cuts? What if it isn’t a death blow but the steady blood-loss of judicial delay and refusals to actually take a stand? What if Roe already is over but it occurred so quietly we didn’t even notice? What if abortion doesn’t end in a shout but in the court’s complete silence?
It easily could happen, and may already be occurring. So far this session the Supreme Court has made its mark on the constitutional right to an abortion by essentially refusing to remark on it at all. By refusing to review the Eighth Circuit Court of Appeals’ decision on an Arkansas restriction of medication abortion provision, SCOTUS essentially magic-8-balled the first major abortion case to come its way since Whole Women’s Health v. Hellerstedt, which lifted state restrictions on abortion services and set a precedent to prevent other states from inflicting their own. “Answer Unclear, Ask Again Later” may work with a novelty fortune teller’s ball, but in the real world, it is a horrible way to address major abortion policy. Instead, it gave abortion providers in Arkansas no choice but to immediately stop offering medication abortions in the state. The action left pending patients with the option of staying pregnant, trying to schedule in for a non-medication procedure in the state’s sole full-service abortion clinic, or leaving the state for care.
If SCOTUS had been into precedent—as courts are supposed to be—deciding to keep Arkansas’s law enjoined should have been a simple decision. In 2016, the Supreme Court ruled in Whole Women’s Health that requiring admitting privileges for abortion providers is medically unnecessary and serves no actual health benefit for the patient—and only hurts them since it can close clinics, leading to less access. The Arkansas restriction—which demanded a written contract with an ob-gyn in a hospital in order for a practitioner to legally dispense medication abortion pills—was passed before the SCOTUS ruling came down. Even without the ruling, a federal judge blocked it from being enforced, but the Eighth Circuit decided it wasn’t clear enough how many women would be affected, demanding numbers on how many patients would be forced to carry to term or get later abortions without the option for medication. Planned Parenthood, which operates both medication-only clinics, asked SCOTUS to step in and tell the appeals court that the additional information was unnecessary.
SCOTUS declined.
How many people must be hurt before the Supreme Court will intervene? That appears to be the No. 1 question for our nine justices, and one they aren’t very eager to answer. Just one week after refusing to hear the appeal to dismiss Arkansas’s de facto medication abortion ban, the court also announced it was vacating a lower court’s decision in 2017 to grant immigrant teen “Jane Doe” an abortion, despite the federal government’s insistence she remain pregnant and give birth.
In an unsigned order, the decision to vacate essentially wipes out any precedent that the earlier ruling offered when it came to whether undocumented immigrants being held in U.S. custody should have the same right to end a pregnancy as a U.S. citizen does. While the action doesn’t mean that the Supreme Court agrees with the Trump administration, which apparently believes that as long as an immigrant is in its care it has the right to block her from any reproductive health decision that it morally disapproves of—it does imply that as a whole SCOTUS has yet to come to a consensus on whether being an unaccompanied undocumented minor means the government gets to force you to be a vessel for their child-bearing agenda.
In other words, they just aren’t sure yet. First they need to see how many people would get hurt.
And people are definitely being hurt by the court’s new silence. According to NBC News, Planned Parenthood of the Great Plains was forced to call patients with pending appointments scheduled for that very week and let them know they were going to have to seek other care. “The law that we were trying to get blocked went into effect immediately, and the immediate results were we had to turn away from the clinic people who were scheduled to take the pill,” Dr. Stephanie Ho told the news station, a process that went on for days. “It’s incredibly disheartening to call a patient and say you qualified for this last week but your government says that’s a decision you no longer get to make.”
Maybe the Supreme Court is being silent right now in order to not rock the boat. Perhaps they believe that refusing to weigh in on lower court rulings, by vacating decisions that could set too much of a precedent, that they are taking on a wait-and-see attitude that best addresses the continuously changing landscape of abortion access while trying to maintain the status quo. But with state legislatures tossing aside their previous restraint and discarding the incremental approach of the end of the Obama era for the full-speed “ban it all now” extremism of the Trump years, silence and a refusal to intervene wouldn’t keep abortion rights frozen in time. Instead, it would play right into the hands of abortion opponents who want to escalate their patchwork of anti-abortion restrictions into a pre-Roe landscape of states where abortion is or isn’t legal based entirely on the political leanings of whichever party runs the statehouse.
How much value is there in the lives of pregnant people? How do you tell someone seeking an abortion that she’s going to be the one to continue an unwanted pregnancy because the court requires more data before it will intervene? How many people have to suffer first before the court can decide that now there is enough proof that restrictions actually do cause harm? Dozens? Hundreds? More?
Maybe the Supreme Court’s silence means it is already too late to stop it. Maybe Roe really is already gone—they just haven’t told us yet.