In the summer of 2014, the U.S. Supreme Court handed down its decision in Burwell v. Hobby Lobby, finding, for the first time, that for-profit corporations could decline to cover birth control for their workers based on religious objections. Women across the land went mental over the five male justices who seemed more solicitous of a scrapbooking company than the women who worked for it.
Now, just two years later, the high court—this time down a member, following the death of Antonin Scalia—heard the follow-on case to Hobby Lobby, Zubik v. Burwell. This one involved religious nonprofits such as hospitals, universities, and charitable groups that don’t want to cover their workers’ birth control and don’t want to fill out a form notifying the government of their objections. The public response has been far more muted.
There are a couple of reasons for this. One is that Zubik is insanely complicated. Another is that this term also has Whole Woman’s Health v. Hellerstedt, where the stakes are potentially even higher. Yet another crucial reason why no one is talking about Zubik: because the court, hamstrung in its ability to resolve cases without a ninth member, kicked the case away this past week, with a plea that the lower appeals courts and the parties attempt to resolve it on their own.
The future of the Supreme Court—and reproductive freedom, it seems—currently rests on the public spectacle of nothing happening. Decisions not happening aren’t news. Confusing, tied votes aren’t news. Merrick Garland’s not-confirmation hearings are not news. You know what’s news? Donald Trump’s shortlist of Supreme Court nominees. The list shows—maybe even more effectively than the dissents in Hobby Lobby—why women’s reproductive freedom is in real peril, because it shows Trump’s eagerness to seat justices who will do away with the right to choose. Some of the judges on Trump’s wish list are well-known; some are virtually unknown; one has openly mocked Trump on Twitter. But none of them has evinced any interest in protecting a woman’s right to choose.
The list consists of six federal appeals court judges (all appointed by George W. Bush) and five state supreme court justices (all nominated by Republicans). Most are men. All are white. All are extremely young. Almost all of them have impeccable conservative credentials. The cast of characters appears to be crafted to assuage the worries of movement conservatives such as George Will, who wrote last March that “there is every reason to think that Trump understands none of the issues pertinent to the Supreme Court's role in the American regime, and there is no reason to doubt that he would bring to the selection of justices what he brings to all matters—arrogance leavened by frivolousness.” There is nothing frivolous in Trump’s list. Just for instance: One of the judges who made Trump’s cut, William H. Pryor Jr. of the 11th Circuit, has described Roe v. Wade as having manufactured “a constitutional right to murder an unborn child.”
Trump’s shortlist isn’t surprising, since the presumptive Republican nominee has already suggested that women who have abortions should be punished and affirmed that he will nominate justices who want to overturn Roe v. Wade. But it’s still terrifying in a Supreme Court term in which both reproductive rights and statutorily guaranteed birth control are on the docket. It seems even more terrifying in a moment when Oklahoma has just passed a galactically silly, unconstitutional bill making it a felony to provide an abortion in the state, which Gov. Mary Fallin just vetoed. Donald Trump may want to do away with Roe v. Wade once he’s elected, but Oklahoma lawmakers are already working to turn that dream into a reality—you might say they’re making America great again.