Right to Lose

One term will drive anyone masochistic enough to sit through the confirmation hearings of GOP Supreme Court nominees bat crazy…Stare Decisis. Webster’s defines the obscure Latin concept as “the legal principle of determining points in litigation by precedent.” Simple enough. But a drop of water is also in itself innocuous, repeated over and over again on a person’s forehead it becomes torture.

Over and over again is exactly how both of Trump’s nominees to the Supreme Court reassured skeptical Democrats on the Senate Judiciary Committee about the importance of precedent. Justices who turned a blind eye to stare decisis were clearly out of line… case closed. Don’t worry about us, we respect the SCOTUS as an institution enough to abide by its past guidance. Agendas are taboo behind the big bench, we are better than that…..Uh, We’ll see.

Flyover states are itching to get Roe v Wade overturned, and to that end their legislators have been going full Handmaid’s Tale, the more obtrusive the better. All to get in front of what they now assume is an understanding High Court ready to make some serious changes to federal guidance of the reproductive rights playing field.

In line with other states seeking to cripple the ability of clinics to provide abortions under ever more outrageously disengenuous claims of protecting patient safety, Louisiana has passed a law mandating abortion providers have admitting privileges at a hospital not more than 30 miles away from where the procedure is performed. While complication rates at certified clinics approach the minuscule, and any ER staff could presumably attend any patient suffering such an outcome, restricting the pool of providers to meet the new criteria will leave one eligible practitioner in the entire state, according to reproductive rights advocates. Piled atop all of the other beauracracy and deliberate red tape, the new law is tantamount to making abortion virtually inaccessible in the state. Were the Supreme Court to uphold it, there is precious little doubt what direction we are heading toward. The next case to come forward for consideration will surely be even more obstructive, until the whole ball of wax comes up for review, or until so many restrictions are validated, the original ruling will have little relevance as a guiding principle.

That Roe v Wade is established law, fully upheld and validated by court precedent is beyond dispute. Planned Parenthood v Danforth (1976), Colautti v Franklin (1979), City of Akron v Akron Center for Reproductive Health (1983), Planned Parenthood v Casey (1992), Hill v Colorado (2000), Stenberg v Carhart (2003) all provide a steady flow of stare decisis spanning decades of high court consideration of the fundamental issues surrounding the original Roe v Wade ruling in 1973. The precedent couldn’t be clearer or more ingrained, the result of decision after decision.

Doe-eyed Maine Senator Susan Collins, who has created a brand as a fair minded Republican, particularly regarding reproductive issues, exclaimed how confident she was then nominee Neil Gorsuch would follow precedent’s guidance on the court. We had a nice long talk in my office, Collins gushed. Indeed Gorsuch took care to say all the right things during his confirmation hearings. He explained that precedent was the “anchor of the law” and requires a good judge to “start with a heavy, heavy presumption in favor of precedent in our system,” and it’s reckless to “…. go reinvent the wheel every day.”

Despite earlier writings questioning whether Roe was “settled” case law, nominee Brett Kavanaugh was glad to give full lip service to stare decisis. “As a general proposition I understand the importance of the precedent set forth in Roe v. Wade,” Kavanaugh said. Now that he is Justice Kavanaugh his vote on the upcoming Louisiana decision should speak volumes.

Of course it’s possible both Gorsuch and Kavanaugh have decided overturning Roe v Wade isn’t even necessary. By allowing legislatures to simply do their worst and erect one obstacle after another under the laughable guise of concern for the women they demonize, the Trumpie duo can achieve essentially the same ends and technically not make a mockery of their duties to the job neither bowled over anyone with their intellectual qualifications for.

Where all of this leaves a woman’s right to choose may very well be up to Chief Justice John Roberts, who increasingly appears burdened fully with what his court’s legacy will be. If, as is likely, Gorsuch and Kavanaugh live down to one’s lower expectations, it will fall to Roberts to balance constitutional principles with what has always been a personal moral and religious preoccupation. If the court’s previous rulings on Roe v Wade do anything, it’s to punctuate this point. Even many pro-life advocates concede overruling Roe would ignore stare decisis; they simply assert the gravity of abortion’s moral offense renders such concerns insignificant.

No bloc of our divided America is more radicalized than pro-life true believers. They hold that abortion is murder… always. To this now essential glue of the GOP base, bedrock constitutional principles responsible for the very structure of our governing system are merely arcane obstacles to justice, enablers of infanticide. In fact, most are fully able to divorce the issue from their zealous right wing politics, a blind spot in their otherwise full throated identity as “constitutional conservatives”. Debating that point is the very essence of a fool’s errand. Whether such futility now addles the Supreme Court will be apparent after the Louisiana decision is rendered. BC