There has been a lot — and I do mean a lot — of speculation as to whether the formal brief the State of Mississippi filed with the Supreme Court in Dobbs v. Jackson Women’s Health Organization, its upcoming case involving the state’s notorious abortion ban, reflects any confidence that the Court is now ready to overturn Roe v. Wade, Planned Parenthood v. Casey, and any idea of a federal constitutional right to choose. To make a long story short, the conservative state’s original petition was quite circumspect about how it expected the Supreme Court to proceed in trying to uphold Mississippi’s ban on abortions after 15 weeks of pregnancy (long before the fetal-viability standard in both Roe and Casey). The brief, though, is loud and proud about overturning precedents, and it has pro-choice advocates more than a little freaked out on the grounds that the replacement of the late Justice Ruth Bader Ginsburg by Amy Coney Barrett means the Court is ready to pursue the anti-abortion movement’s long-awaited counterrevolution.
Vox’s Ian Millhiser notes the ominous implications of the brief’s unusually direct rhetoric:
Mississippi’s brief, which argues that “the Constitution does not protect a right to abortion or limit States’ authority to restrict it,” breaks with the tactics anti-abortion lawyers have used to defend restrictions on reproductive freedom. Rather than explicitly asking the Court to overrule Roe, in the past, these lawyers tried to chip away at the abortion right until it is functionally impossible to obtain an abortion in many states.
That strategy ran up against a brick wall in the last major abortion case the Supreme Court decided before Justice Anthony Kennedy’s retirement and Justice Ginsburg’s death radically changed its composition: Whole Woman’s Health v. Hellerstedt, which appeared to close the door on further indirect efforts to end legalized abortion by harassing providers into extinction. Now, it appears, many if not most anti-abortion activists think the time is ripe for full-frontal aggression against reproductive rights.
Inside the anti-abortion movement, there has been long-standing debate over a strategy of stealth versus honesty in assaulting the right to an abortion. As my colleague Irin Carmon explained back in 2013, a 2007 memo by longtime National Right to Life Committee counsel (and Republican Party activist) James Bopp laid out the mainstream position of feigned moderation:
The memo is a work of astonishing frankness. “The pro-life movement was energized by Roe in 1973, but wise leaders recognized from the beginning that one of their foremost tasks was to keep abortion alive as an issue,” Bopp writes. His preferred strategy: electing as many “pro-life” leaders as possible, while slowly chipping away at abortion rights and public support for them. “A vital battle stratagem is to choose proper terrain — favorable to you, unfavorable to your foe,” he wrote …
The key example: “The debate over partial-birth abortion has furthered this strategy because it has forced the pro-abortion camp to publicly defend a particularly visible and gruesome practice.” Indeed, when the issue came before Congress, 17 Senate Democrats voted for the ban, which restricted a rare procedure.
The strategy Bopp outlined has always been controversial among the ranks of abortion opponents because it suggests an acceptance of the vast majority of abortions squarely within the protections laid out in Roe and Casey. If, to put it another way, you think that zygotes that IUDs prevent from implanting in the uterine wall are human beings just like me and you and that their demise represents an “American Holocaust,” then arguing over late-term abortions or hospital regulations affecting clinics seems like an immoral understatement of the problem and the solution. Now, it looks like the honest proponents of reproductive tyranny are winning the argument. Bopp himself filed a brief for the NRLC in the Dobbs case that pursues the traditional incremental strategy, but if in next fall’s oral arguments the Supreme Court seems open to the more direct and radical approach, he will joyfully join in the unveiling of the movement’s ultimate goals.
Actually, the goalposts may be moved by then. If Roe falls, then even as anti-abortion activists pounce upon state legislatures in frenzied lobbying for abortion bans, the new frontier of litigation will be aimed not just at eliminating a constitutional right to abortion but at establishing a constitutional right for untrammeled development from conception to birth. This “personhood” movement has already been making steady gains in anti-abortion circles despite the horrified reactions of voters whenever it has been tested in state referenda.
And while the stealth approach might have made sense in a judicial context in which the law moves slowly, once abortion has become a fully political issue, the incentives for radicalism may rise. As the New York Times’s Linda Greenhouse notes, the Mississippi brief challenging Roe didn’t emerge from a hermetically sealed legal environment. It has an author, the current attorney general of that state, who is a fiery MAGA conservative:
Lynn Fitch, 59, is the first woman to be Mississippi’s attorney general and the first Republican to hold the office since Reconstruction. She is an ambitious politician sometimes mentioned as a future governor …
“I’m an original Trump supporter,” Ms. Fitch proclaimed on the stump. “I have a relationship with our president, and you can count on me to work with our president to stand strong, to fight illegal immigration, build that wall and also to stop the assault on our Christian values.”
I don’t know, but can only suspect that she took some after-the-fact heat at home for not having made a more full-throated call to overturn Roe in her initial Supreme Court petition.
And if the conservative majority on the Court returns to marginally eroding abortion rights, instead of bluntly eliminating them, you can bet those currently in charge of the Republican Party nationally will stop playing coy about abortion litmus tests for federal judicial nominees. They’ll want pledges to smite the baby-killing feminists written in blood.