The GOP Can Block Abortion Access Without Overturning Roe

Despite the numerous outstanding sexual-assault accusations, the hundreds of arrests during massive protests, and the opposition of thousands of law professors and hundreds of thousands of churches, former George W. Bush administration lawyer Brett Kavanaugh has now been sworn in as the next Supreme Court justice (three times, even!), putting legal abortion rights up on the chopping block.

Still, it’s hard to imagine the new Kavanaugh court immediately overturning Roe v. Wade and letting states directly ban abortions at their borders—no matter how much the right is salivating at the prospect. Overturning Roe is a nationally unpopular move, one even the GOP is probably unlikely to want to see occur since abortion is the single issue that drives so many of their supporters to the polls. Besides, with the possibility of a liberal seat going up for grabs potentially before Trump is out of office, it’s far more likely that the conservatives would try to hold off until they can end abortion with something stronger than a 5-4 decision.

So what happens instead? The same thing that has been happening in a snowballing effort ever since 2010—the piling on of state-based abortion restrictions. Unlike before, when abortion opponents were playing to a “moderate” swing vote in Justice Anthony Kennedy, the anti-abortion movement will move harder and faster, knowing the threshold for extreme restrictions that the Supreme Court would be willing to consider is higher than ever before.

And yes, that could even mean spousal consent is in play.

On paper, introducing spousal-consent bills should be an automatic no go. Spousal consent was one of myriad restrictions proposed in a Pennsylvania abortion law that eventually became the lawsuit known as the 1992 Supreme Court case Planned Parenthood v. Casey. That case infamously rejected the opportunity to overturn Roe, which abortion opponents were originally trying to do. Instead, the court ruled in a 5 to 4 majority that established the idea of “undue burden”—that while the state does have the right to restrict abortion prior to viability, they can only do it if the restriction doesn’t create an undue burden on the right to legally access the procedure.

Spousal consent—the need to actually get a permission slip from your husband if you are married in order to terminate a pregnancy—didn’t meet that standard.

Under normal circumstances, such a solid precedent should signal the end of the matter. But obviously when it comes to abortion laws, the normal rules don’t apply. Anti-abortion lawmakers have spent the years since 1992 introducing and even signing into law the most blatantly and unequivocally unconstitutional bills out there, and even defended them in courts, wasting millions in taxpayer dollars just to keep the debate alive. For some bills, like 20-week abortion bans, the goal was to force tiny, incremental changes in order to set precedent for bigger bans down the road. In others, like the “heartbeat” bills, the goal was to challenge sitting law by stating that the original decisions themselves are illegitimate and should not be upheld.

Throughout that period, though, spousal consent did keep popping up its head. It was proposed in Ohio twice—once in 2007 and again in 2009—as a way to make sure men were more involved in the abortion decision. The 2009 proposal mandated that “the father of the fetus” had to provide written informed consent before an abortion could take place, and that it would be a “first-degree misdemeanor with a maximum $1,000 fine” to falsely name someone else as the father in order to terminate. If that person provided a false father twice, that would be a “fifth-degree felony.”

That bill didn’t proceed, despite dozens of GOP co-sponsors. But bills floated around after that in other states regardless. In 2013, Missouri Republican legislator Keith English told me there was a bill in the Statehouse proposing required consent, but that no one was willing to sponsor it yet. By 2014, Republican Rick Brattin picked it up and made it his own. As I mentioned back then, National Pro-Life Alliance, a lesser known anti-abortion group that mostly appears to exist to fund-raise and endorse Rand Paul, has been questioning candidates for years on their willingness to support spousal consent bills in the states.

Most recently Oklahoma state legislator Justin Humphrey proposed yet another consent bill demanding the person seeking an abortion get written permission from her sex partner—and that bill was in 2017. Humphrey, a newly elected state representative made this one of his first bills, after riding into his seat on the Donald Trump wave in 2016.

If that’s the kind of bill that newbie legislators of the Trump era proposed even before they took over the Supreme Court, you can only assume it will be worse now that they have the judiciary under their thumb. Every Brattin, English, and Humphrey will be relishing a second chance to take a swing at seeing just how far they can push those who are pregnant into being forced to give birth, and what better way to do it than to make men the gatekeepers who can make the final decision on the matter?

Of course, there’s still the problem of precedent. Spousal consent was rejected in 1992 because of an earlier case—Planned Parenthood v. Danforth in 1976—also called spousal consent unconstitutional. With such a direct comparison, it’s nearly impossible to get an extremely similar bill to make it through a challenge without drawing the exact same comparison from the judges, no matter how ideologically opposed to abortion they may be.

But there are other, more indirect ways to sneak it by. Arkansas legislators tested one out in 2017, when they gave spouses the right to sue an abortion provider who violated the state’s proposed D&E ban. By opening up other options for spouses to sue providers, a de facto consent rule could be put into effect without an actual bill ever officially being written spelling it out.

Another avenue would be inserting new rules into legislation meant to prevent “coerced abortion,” or strengthen so-called “informed consent” or even reintroduce the mandatory counseling that was previously struck down in South Dakota. Any of these bills could be potentially revamped into partner/spousal consent bills by requiring the “father” of the fetus come to the clinic with the pregnant person as a requirement to get through one of the legal hoops.

Would a direct spousal consent bill—or one of these indirect versions—make it through the new far-right Supreme Court? Probably not. But we do know that of those who upheld all of the Pennsylvania restrictions in 1992, one (Clarence Thomas) is still on the court, two (Neil Gorsuch and Samuel Alito) are believed to be justices in the mold of the late Antonin Scalia, who also ruled for Casey, and one (Brett Kavanaugh) was mentored by former George H.W. Bush era and Clinton prosecutor Ken Starr. And Ken Starr was the Department of Justice lawyer arguing that the Pennsylvania laws were all constitutional.

That leaves Chief Justice John Roberts as a swing vote and frankly, when your right to an abortion is all up to Roberts, well, that’s a pretty terrifying situation.

Of course, maybe I’m being an alarmist. Maybe these bills won’t even get proposed. Or maybe, even if they do get proposed, they will get shut down before they ever get a hearing, just as they always have. Then again, 2018 was the year of “throw her in jail if she has an abortion” bills, and that was even before Trump had a second nominee for the bench.

The simple fact is, every year state bills get more and more extreme, and now we can no longer rely on any legal check to stop them. So hold on to the hope of precedent for as long as you can, but be prepared for the new reality once it all is finally stripped away.