Roe v. Wade is on the ballot this Election Day.

Don’t Fool Yourselves: Roe v. Wade Is on the Ballot on Tuesday

Don’t Fool Yourselves: Roe v. Wade Is on the Ballot on Tuesday

The law, lawyers, and the court.
Nov. 3 2016 5:49 PM

Roe v. Wade Is on the Ballot

Abortion rights are on the line in this election and people don’t seem the least bit concerned.

Sen. Richard Burr speaks about veterans affairs during a news conference on Capitol Hill, June 3, 2014 in Washington, DC.
Sen. Richard Burr during a news conference on Capitol Hill on June 3, 2014, in Washington, D.C.

Mark Wilson/Getty Images

Sometimes it’s easy to become a victim of your own success. Other times, it’s easy to become a victim of your own illusions. When it comes to the Supreme Court, liberals seem to be a bit of both right now, especially on issues that affect women. What many don’t seem to realize is that this election isn’t just about not elevating a misogynist of Donald Trump’s caliber to the White House. It’s now coming down to whether Republican Senators can reverse women’s progress even in the event that we elect our first female president.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

First, here are some successes to which progressives are falling prey: There are now three women on the U.S. Supreme Court, whereas eight years ago there was only one. Also—thanks in no small part to those three women—there was a galactic win for reproductive freedom last June in Whole Woman’s Health v. Hellerstedt, the most significant abortion case the high court has heard since 1992. (There was also a nonloss for contraceptive freedom in a second case, Zubik v. Burwell.) As a direct result of the abortion victory, punitive and pointless abortion regulations have been struck down around the country, and women were again entrusted with their own health decisions in ways that were unimagined even a year ago.

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Stop and think about that: For more than 200 years in this country, nine men had the final say over every aspect of women’s lives, from whether we could tend bars to whether we could take the bar exam. And in June of 2016, we got to decide for ourselves whether we could be in charge of our own bodies. It’s almost unimaginable to most of us that in 1972 that notion was a far-off dream.

And now our illusions: We all like to think that Supreme Court decisions are sealed in amber, protected for the ages, which leads us to downplay the importance of the future makeup of the court. In a June Pew survey, the question of Supreme Court appointments was the 11th most important issue in the election among Clinton voters. Abortion was the 14th out of 14. We put that fight behind us last June right? We all also like to think that the Supreme Court is a magical entity, wherein—regardless of the circumstances in the rest of the country, like maybe having a president who has said there should be “punishment” for women who have abortions—justice rains down like manna. Senate Republicans are paradoxically victims of that same flawed logic. Their overt hints that no nominee put forth during a potential Hillary Clinton presidency will ever get a hearing, and that ending the next four years with a court of six or seven justices would be a political triumph, showcases their conviction that the courts are a kind of religious national ornament. The new theory seems to be that the Constitution interprets and executes itself.

Those who stopped paying attention to the high court after the pop-up abortion victory last June are succumbing to precisely the same illusion: It hardly matters that we—as women—dodged a reproductive-rights bullet last spring, if we are about to be flattened by a reproductive-rights tank. And make no mistake, the current GOP promises to obstruct any and every justice named by a President Clinton, are an oncoming Panzer. If you were afraid for women’s health last spring, you should be flipping out right now. (And you should have been afraid last spring.) Because everything that was on the line in the two women’s health appeals at the court last term are still on the line today. Except now it’s not up to the court to decide if women and their bodies matter. It’s up to voters across the country and whom we elect to the Senate.

Why? At the most basic level, Republican-dominated state legislatures have continued to press for more and more onerous abortion restrictions, including burial and cremation requirements for abortions and miscarriages and the return of spousal consent laws. Without fully staffed lower courts to enforce the Supreme Court’s framework from the Whole Women’s Health decision, those patently unconstitutional laws will continue to proliferate. At the highest level, the GOP’s current plan seems to be to starve the court of replacement justices until there’s a Republican president to nominate justices that would overturn Roe. This is essentially what Sen. Richard Burr was indicating when he said this week, “if Hillary Clinton becomes president, I am going to do everything I can do to make sure four years from now, we still got an opening on the Supreme Court.”

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Those intent on shuttering the courts won’t stop at blocking some Supreme Court nominees, though. If they can block all progressive outcomes by preserving judicial emergencies and open seats in the lower courts—something Burr bragged about having done for the past 11 years—they will do that as well. Especially if they face no consequences at the polls. Senate Republicans aren’t just threatening such conduct; they are openly campaigning on it. Lower court vacancies mean fewer judges, and a decline in access to justice for everyone.

Please consider this as well: Ruth Bader Ginsburg is 83. Anthony Kennedy is 80. Stephen Breyer is 78. Right there you have three members of the five-justice majority in last year’s abortion case. The idea that this case is safe from imminent review and reversal is comforting, but profoundly untrue. If a President Trump were allowed to fill the vacant Scalia seat and the seat of any one of those justices should they leave the bench in the next four years, Roe v. Wade would likely be done. And if Senate Republicans can effectively block any and all replacements for the current vacancy and any new ones until a Republican is in office, the outcome will be the same.

Donald Trump has promised to seat only jurists who would overturn Roe. Indeed, Trump is counting on pro-life voters who would otherwise loathe him to vote for him only because of the Supreme Court. With a few exceptions, including notably Ross Douthat writing in the New York Times on Wednesday, that issue alone is deemed worth casting a vote for an unqualified, incurious bully.

It’s also important to note, again, that this new absolute obstructionism on the Senate side is not some standard operating procedure by both sides. Until recently, most U.S. Senators felt at least some compulsion to vote for qualified jurists, even if they were nominated by a president of the opposing party. Certainly many in the Senate have objected to some qualified jurists over the years—including Obama when he was representing Illinois in that body. But the novel principle that—as Douthat espoused in a tweet on Tuesday—GOP obstruction happens because “current liberal judicial theory is inherently illegitimate,” well, that is code for “no jurist named by a Democrat will ever be legitimate.”

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You can pretend it’s about “judicial theory,” but please note that nobody has been saying a word—pro or con—about Garland’s “judicial theory.” This is about the presumed illegitimacy of Democratic presidents and the presumptive illegitimacy of every last one of the judges they select. It’s not even really about that, ultimately. It’s about the triumph of raw power over actual governance, and a sacrifice of precious government institutions to the need to win at all costs.

It is no accident of history that the Supreme Court has suddenly been deemed less-than-a-court, and that judges seated by Democrats are less-than-fully-judges, just at this watershed moment when women occupy three of those seats, a black president has nominating rights over another seat, and a woman president is likely poised to claim that nominating power herself. A Supreme Court that has weathered centuries of petty partisanship—up to and including efforts to hobble it, pack it, and limit its jurisdiction—is now being held out as something to be killed outright, but—oddly enough—it happens only now that white men are no longer fully in charge. This is no accident.

If you go to the polls next week thinking that abortion rights are currently safe, settled law, you fail to understand that the only thing Senate Republicans now appear to be running on is the purposeful dismantling of Roe v. Wade via the purposeful dismantling of the court itself. The fantasy of the 2016 election is that the court, the Constitution, and the rule of law will survive the damage a four-year GOP Senate shutdown can bring. They cannot. The only bulwark against terrible constitutional backsliding for women in the coming years is the Supreme Court, and some Republicans in the Senate are staking their careers on the fact that both Republicans and Democrats think the courts can withstand anything. We need to vote in the Senate races like the court itself is on the ballot. Decades of progress for women’s rights depend on it.