Earl Ofari Hutchinson
There was absolutely no doubt that even before the ink was dry on Alabama’s Medieval era abortion law that the law would wind up in court. Planned Parenthood wasted no time in announcing a legal challenge to the law. It won’t be the only challenge. The white, male Alabama GOP legislators who rammed the bill through knew that. In fact, that’s what they want and were unabashedly open about it.
Now, most high court watchers bet that the SCOTUS won’t take the bait and touch the case because it’s fraught with political peril, too divisive, and there’s no solid consensus yet among the court’s conservative judges that Roe v. Wade should be scrapped.
That may be. But this guesswork badly underestimates the ferocious determination of powerful conservative forces to toss Roe. That’s been the case from the moment in 1973 the court decided the landmark case. Religious conservatives, indeed, virtually conservatives of all stripes, made the solemn vow that they would do everything within and without the law to overturn the decision and make right to life supreme again in America. They have been almost as good as their word. They have picketed hectored, heckled, and harassed women at countless family planning clinics throughout the country for years.
They badgered GOP presidents to issue executive orders barring the federal government from funding virtually any group or agency that even uttered the word abortion in its programs and services. They got states and courts to hack away at the term when life begins and bar abortions for women who are pregnant even one minute past that bogus legalistic time frame. They got successive GOP presidential conventions to put hardline anti-abortion pledges in GOP Convention Planks.
Despite all this, they have still not been able to fulfill their solemn pledge to get the SCOTUS to totally dump Roe. They just needed one or two more judges on the high court to finally say no to it. Trump knew that, the GOP knew that, and Democrats have always feared that that day would come when they’d have those votes. The ferocious battle over the confirmation of Judge Brett Kavanaugh was almost totally driven by the great fear that Kavanaugh would be that much needed fifth vote to overturn Roe. He shrewdly said all the right things about the issue during the fight. And even more coyly after his confirmation tersely said that Roe was ‘settled.”
However, in the world of legal parlance and decisions nothing is settled. The laws and decisions about those laws are always fluid and subject to change depending on changing times, conditions, circumstance, and always political views and philosophies of the principal players. Roe is proof of that. It was passed decades ago. Yet it did not settle the issue that abortion is the entrenched law of the land. Alabama and the other states that have tightened restrictions on abortion have amply demonstrated that.
Trump is still another example of how a law that seemed to be settled such as Roe could change with the times and politics. At one time, Trump was an avowed backer of choice, and said as much. That’s brutally changed. He is now the one person who can ensure that conservatives finally get their wish on Roe. He nominated Kavanaugh and Neil Gorsuch. And if re-elected he will have four years to pack the court with one or two other conservative jurists.
There would be little doubt that Roe would be in mortal peril. But even now, if the court pivots and defies the experts who say it will do nothing on the issue and decide to take up one or more of the challenges, it could still spell disaster. That pivot could happen precisely because of politics. Trump badly needs the enthusiastic backing of hard-line conservatives and evangelicals to cement another win. He’s no different in this than other GOP presidential candidates who need the anti-abortionists votes en masse.
This was the case with 2008 GOP presidential candidate John McCain and 2012 GOP presidential candidate Mitt Romney. Neither sufficiently passed the abortion litmus test to the satisfaction of religious conservatives and their leaders. So, they stayed home in droves. Trump didn’t exactly set their hearts on fire either. But the mere thought of rock-solid pro-Choice Hillary Clinton sitting in the White House sent terror through their ranks. They held their noses and grudgingly voted for Trump.
Now with 2020 presidential looming, packs of votes from conservatives are needed again. Trump and the GOP know that. The best way to ensure that they’ll show up in droves again is to give them a big victory by dangling the prospect of a solid conservative high court deciding to do away with Roe. The stakes in the expected challenges to Roe have colossal political consequences for the GOP. This is why betting against Alabama’s bait of the SCOTUS to scrap Roe may be a bad bet.
Earl Ofari Hutchinson is an author and political analyst. He is the author of Biden Versus Trump: Who Would Win? (Middle Passage Press/Amazon Kindle). He is a weekly co-host of the Al Sharpton Show on Radio One. He is the host of the weekly Hutchinson Report on KPFK 90.7 FM Los Angeles and the Pacifica Network.