Dear John,
It’s been a tough week since the Supreme Court ruled to strike down Roe v. Wade.
The decision was met with outrage — especially among women and young people — who mobilized large sustained demonstrations and were joined by hundreds of thousands of supporters of reproductive health and rights across all 50 states. The opposition to the decision has been massive, and pundits are saying it could be a decisive factor in this fall’s midterm elections.
In state courts, clinics have been filing lawsuits — challenging abortion restrictions and bans as violations of state constitutions across 11 states. And they’re meeting with some success. On Thursday, a state court judge in Florida ruled that the state’s 15-week abortion ban is unconstitutional — meaning that abortion in the state will remain legal until 24 weeks, making it one of the least restrictive states in the south for abortion. The decision will no doubt be appealed to the Florida Supreme Court.
That same day, a Kentucky judge moved to temporarily block the state’s trigger law, which would have banned all abortions. Louisiana and Utah also saw judges block state trigger laws. Abortion providers and their advocates across the country are saying: we are not going to go down without a fight.
Many Democratic lawmakers at the federal and state level are also stepping up. Lawmakers in Congress have introduced legislation to crack down on fake clinics and anti-abortion disinformation and protect reproductive health data; at the state level lawmakers are spearheading movements to create abortion sanctuary states including liability protections for abortion providers from vigilante lawsuits and criminal prosecution by other states.
The Biden administration has been forceful and out front in its reaction as well. Attorney General Merrick Garland has made it clear that the Department of Justice will vigorously enforce the Freedom of Access to Clinic Entrances Act (FACE), working with providers and local law enforcement to counter violence and threats of violence by anti-abortion extremists who have been emboldened by the Court’s decision. Garland also declared that states cannot outlaw the use of medication abortion (abortion pills) which the FDA has approved as safe and effective.
And speaking from Madrid Thursday morning, President Biden himself chastised the Court, and called for the altering of Senate filibuster rules in order to codify abortion rights and protections into law. In his speech, the President lambasted the Court’s “outrageous” behavior, and called out the ruling’s implications in challenging the fundamental right to privacy.
“I believe we have to codify Roe v. Wade in the law, and the way to do that is to make sure the Congress votes to do that,” he said. “And if the filibuster gets in the way, it’s like voting rights; it should be — we provide an exception for this.”
To suspend the filibuster rules, Sens. Joe Manchin and Kyrsten Sinema would have to change their stance — which both have indicated is extremely unlikely. But as abortion rights advocates are pointing out, there’s another avenue: if Democrats pick up at least two more seats in the Senate in this fall’s midterm elections, the filibuster can be suspended — without needing Manchin and Sinema's votes — and a law to protect abortion access could be within reach.
It’s been a disastrous Supreme Court term — not just for women’s rights, but for gun violence, climate change, civil rights, the separation of church and state, and more. On July 6, join us online or in person at UC Irvine Law for our Supreme Court Review — where experts including our own Michele Goodwin, UC Berkeley Law School Dean Erwin Chemerinsky and more will unpack the past term (you can sign up here).
And I know many Ms. readers are feeling discouraged. But as someone reminded me today, we have to be sure to celebrate our victories when they come. And a major victory came on Thursday when Justice Ketanji Brown Jackson was sworn in to her seat on the Supreme Court, which could not come at a more pivotal moment.
As Ms. contributor Madibe K. Dennie pointed out, Justice Jackson’s addition to the Court won’t change its ideological leanings — and “one person can’t fix everything. … But what we should do is look at this as an opportunity to think about more broad changes,” she adds — such as diversifying the federal and state judiciary. In the wake of Roe’s overturn, this message is more imperative than ever.
