More than once, Justice Sonia Sotomayor interrupted the lawyers for Louisiana with an incredulous “I’m sorry” — in a tone that seemed to speak more to her sense of disbelief than matters of pure etiquette.
Justice Ruth Bader Ginsburg was fierce and sharp as always, once again defending the rights that have been her life’s work. It must be said, though, that it was frightening to see the then 86-year-old, who’d recently fought pancreatic cancer, so small and frail as to be nearly hidden by the bench.
If you reflect on the past decade of reproductive politics, you too might share some of the justices’ frustration. We’ve been through a lot. Some of it progress, to be sure — like that 2016 ruling in Whole Woman’s Health v. Hellerstedt, which knocked down abortion restrictions in Texas.
But the overall trend has been toward much less access to both abortion and birth control, especially for poor women. After all this time, the insults have started to run together into an indistinct misogynist slurry. The hundreds upon hundreds of state anti-abortion regulations. Sandra Fluke, the “slut.” Hobby Lobby. “Legitimate rape.” The laws banning abortions before many women know they’re pregnant. And the legislation that tried to straight-up ban all abortions.
It’s been an absolute onslaught, and one that’s gotten more extreme over the years. That’s why there was even a conversation recently in anti-abortion circles about whether doctors could reimplant ectopic pregnancies. (They can’t.) It’s how a law banning abortion at 15 weeks of pregnancy has been made to seem not so bad, even though it’s just as unconstitutional as a six-week abortion ban. It’s why Tennessee passed a six-week ban just a few days ago — in a dramatic, middle-of-the-night gambit — and few people seem to be talking about it.
It’s also how smart, knowledgeable people can look at this terrifying Supreme Court case, one that should never have even made it before the court, and do little more than sigh. And, I fear, it’s how a bad-but-not-worst-case decision in the coming days — for instance, if the court says laws like Louisiana’s could stand in some states but not others — might be met with, “Whew, bullet dodged.” When, in fact, such a decision would be a signal that the anti-abortion movement is coming alarmingly close to the culmination of its nearly 50-year battle to destroy Roe v. Wade — without the political blowback of actually overturning Roe v. Wade.
Of course, it’s impossible to know exactly what the Supreme Court will do. In recent weeks the court has delivered two significant, and somewhat surprising, progressive victories, in its rulings on L.G.B.T.Q. discrimination and DACA. And if the abortion ruling is shocking enough — either a purely positive outcome or a more obviously catastrophic one — there will no doubt be a significant public reaction. But a lot of court watchers expect that the decision will be neither of those things.