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There is Supreme irony (pardon the pun) in the fact that our political parties have given us a frightening and baffling turn of events on the issue of the court and abortion. Strategies that were deemed by some on the left as too radical and far-sweeping in 1973 are now being adopted as far-sighted by the Trump right.Â
Judge Ruth Bader Ginsburg thought that Roe v. Wade âtried to do too much, too fast â it essentially made every abortion restriction in the country at the time illegal in one fell swoop â leaving it open to fierce attacks.
âDoctrinal limbs too swiftly shaped,â she said, âmay prove unstable.â
It was because of her early criticism of one of the most consequential rulings for American women that some feminist activists were initially suspicious when President Bill Clinton nominated her for the Supreme Court in 1993, worried that she wouldnât protect the decision.
Of course, they eventually realized that Justice Ginsburgâs skepticism of Roe v. Wade wasnât driven by a disapproval of abortion access at all, but by her wholehearted commitment to it.
The way Justice Ginsburg saw it, Roe v. Wade was focused on the wrong argument â that restricting access to abortion violated a womanâs privacy. What she hoped for instead was a protection of the right to abortion on the basis that restricting it impeded gender equality,â according to Mary Hartnett, a law professor at Georgetown University who was a co-writer on the only authorized biography of Justice Ginsburg.
âWhile it may seem unlikely, Ginsburg, the pioneering advocate for womenâs rights who died in September 2020 at age 87, was a frequent critic of Roe v. Wade, especially its framing and the speed in which it was pushed through.â
Indeed, Ginsburgâs criticisms of Roe generally had to do with pragmatic and political concerns, rather than saying it was outright wrong. Far from wanting to leave this decision to the states, as the present court has done, âshe repeatedly sided with the idea that abortion was a constitutional right. She had preferred that right to be phased in more gradually and that it rely more on a different part of the Constitution â the right to equal protection rather than the right to privacy, the basis of Roe.â
Fast forward to 2022, when there was a leak of Justice Samuel Alitoâs draft memo on the fate of Roe v Wade. At first, he seemed to agree with Ginsburg, concurring that âRoe was âegregiously wrongâ from the start and its reasoning is âexceptionally weak.â But his conclusion was very different. He said, âItâs time the issue went back to the states: That is what the Constitution and the rule of law demand.â
âOur Nationâs historical understanding of ordered liberty does not prevent the peopleâs elected representatives from deciding how abortion should be regulated,â he added. Many â especially liberals like Justice Elena Kagan â warned of the dangers of overturning precedent, a move that shakes the stability of the law.
For Justice Alito, it was time for the court to butt out. âThis court cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling people to move on,â he said. Alito closed by writing: âWe end this opinion where we began. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion.â
Roe lasted almost 50 years. How unusual would it be to overturn it?
Court watchers on both sides of the issue were left flabbergasted by the leak, due the breadth of the opinion and the fact that it would forever change the landscape of womenâs reproductive rights.
We now know what happened. Roe was overturned. We have a hodgepodge of disparate regulations: some states essentially outlawing all abortions with no exceptions for rape, incest, or the health of the mother; others, permitting some exceptions, but not others.Â
The result is chaos. So hold onto your hats: here is where the story gets really convoluted.Â
Justice  Alito, in his majority opinion in Dobbs v. Jackson Womenâs Health Organization, wrote that the Courtâs decision would allow âeach State to regulate abortion as its citizens wish.â Yet just three weeks after Roe was overturned, and with many Republicans agreeing that abortion was now an issue for the states to decide, GOP members in the house started calling for federal legislation that would ban abortions after a fetal heartbeat is detected.Â
Today, anti-choice activism focuses on ending any sort of legal abortion access across all 50 states. Thirteen states are now in the process of ending such access entirely through âtrigger laws,â with many states seeking not only to ban abortion but to criminalize those who provide and seek abortion services.
This is where we are: Everything seems topsy-turvy. A Federal right to choose (Roe) led to a 50-year conservative crusade for statesâ rights (confirmed by Dobbs) which has led, in turn, to a new call on the Trump-leaning right for a Federal ban on all abortions. Confusing? Indeed.Â
Senator Lindsey Graham answered the call. He offered up a bill that would ban abortions after 15 weeks of pregnancy. It includes exceptions for cases of rape, incest, and to save the life of the mother. The bill includes a claim that is not scientifically proven that fetuses can feel pain at that stage in development.Â
Some Republicans were shaken up when deep red Kansas voted down a complete ban on all abortions in the state in 2022. Such GOP legislators are leery of going back to the federal playing field where they just had a big win. They want to keep the focus strictly on the economy and inflation, which they see as winners.Â
As Politico notes, even among Republicans who personally support the bill, some say itâs a potential distraction from their 2024 election strategy. Since the Supreme Courtâs decision, Republicans in both chambers have stuck to a carefully honed message: Itâs up to individual states to decide its abortion policies. Roe, after all, was popular for a long time, with Americans 62 percent in favor at the time it was overturned. The GOP is split. The Trump wing of the party generally likes the federal route, and would probably try to make the ban stricter.Â
It took fifty years, but traveling the federal highway resulted in a major crash for pro-choicers at the end of the road, as Justice Ginsberg so often warned. A federal ban backed by the GOP could be trying to cross a bridge too far. Will anti-choice forces also find calamity on the federal highway?Â
In our topsy-turvy world, itâs hard to know.
About the Authors: Dr. Rosalind  C. Barnett is a senior scholar at Wellesley College and Caryl Rivers is a professor of Journalism at Boston University. They are the authors of The New Soft War on Women. (Tarcher/ Penguin.)
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