First of all, it doesn’t need to. Roe v. Wade has already been thoroughly decimated by a thousand different regulations, all of which the Supreme Court has, or will, uphold.
Second, the Alabama geniuses could not have been stupider in the way they set things up for the court.
And third, smart Republicans — and that includes a chief justice who worries about the legitimacy of the post-Kavanaugh court — know that it would be the worst thing they could do to the party and to the court.
To be clear, 46 years after Roe, abortion is still a privilege in America. Ninety percent of counties in America have no abortion providers, according to the latest numbers from the Guttmacher Institute. Almost 40 percent of American women ages 15 to 44 live in those counties. And 58 percent of all American women of childbearing age live in states that Guttmacher qualifies as “hostile” to abortion, which means they place every obstacle they can in front of the youngest and most vulnerable women. There are now five justices who you can routinely expect to like every regulation they see.
Upholding regulations that make it difficult, costly and painful for poor women and teenagers to get abortions is one thing.
Reversing the Court of Appeals, tossing aside a 43-year-old decision and the doctrine of stare decisis to uphold a law that would force a rape or incest victim (often a child herself) to bear the man’s child, a law that would imprison any doctor who helps her for longer than the rapist, is quite another. It is most assuredly not the way to present the question of overruling Roe v. Wade.
Missouri State Representative Tila Hubrecht thinks of it as the “silver lining.” “Sometimes bad things happen, and they’re horrible things,” she said. “But sometimes God can give us the silver lining through the birth of a child.” Alabama clearly has no problem telling these girls and women that they are murderers if they do otherwise.
Affording an exception for rape and incest proves the hypocrisy of the “conception” crowd (whose interest in life, Barney Frank famously said, “begins at conception and ends at birth”). You can’t fault Alabama for inconsistency.
But not recognizing it means you lose the argument, lose the race, lose the majority, lose the country.
Without a story, almost 70 percent of Americans are opposed to overruling Roe v. Wade. Now you can get a majority to support various kinds of regulations, particularly if they are sold as an effort to protect the health of the mother or to bar gruesome-sounding procedures made up by legislative assistants.
But if the story is instead about a 13-year-old incest victim, or even a 20-year-old coed beaten and raped in an alley (that was me), you lose.
When O’Reilly baited me on abortion from the skybox at the 2004 convention, I pointed to the spot on the map in back of me and asked why he or anyone else had the right to force me to have a child. Today, there will be millions of women standing up, women and men, asking the same question.
Every single state legislative race in every single state would be decided based on abortion. There are a lot of survivors who would make very fine legislators, in Alabama and elsewhere. If it were to happen soon enough, we might even get a woman president to boot.
But it won’t.
The Supreme Court will decline to take the case. Or it will affirm by order.
In the meantime, the phones at the few clinics available to women in Alabama will ring off the hook with frightened women who never took constitutional law and don’t understand that this is just a game that’s being played — with their lives. No lower court can enforce this law; they have a duty to uphold the Constitution, a phrase they must have dropped from the oath in Alabama. There will be a child somewhere, a victim of rape or incest, who might actually believe the buffoons, with their silver linings and their talk of murder, and hurt herself. The scars don’t go away.
And there will be a new generation of heroes and heroines, the men and women who literally risk their lives, who are yelled at and screamed at and threatened every day and yet continue to believe that constitutional rights belong to all of us. And the fight we shouldn’t be having, the fight we would be having if men were to get pregnant, will continue.
