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Analysis Abortion

When Will These Attacks on Abortion Rights End? You Won’t Like the Answer.

Jessica Mason Pieklo

Legal precedent means very little to judges and justices personally opposed to abortion rights, as we've seen during the COVID-19 outbreak.

It seems each day brings new developments on abortion rights in the time of COVID-19. It’s maddening and has left me with one lingering question: Will this shit ever end?

The U.S. Court of Appeals for the Fifth Circuit once again put a halt on nearly all abortions in Texas, issuing a ruling Monday allowing the state to enforce Gov. Greg Abbott’s (R) COVID-19 ban.

The decision represented a course correction for the conservative appellate circuit that had just a few days prior ruled abortion care could continue in Texas. Meanwhile, a federal court in Oklahoma on Monday issued a permanent injunction blocking that state’s COVID-19 abortion ban. Attorneys for the state of Oklahoma promptly appealed that injunction to the U.S. Court of Appeals for the Tenth Circuit. All the while litigation continues in six other states as advocates push back against Republicans’ attempts to weaponize the COVID-19 pandemic in their war on abortion rights.

So when will this shit end? That’s not a rhetorical question. Just one year ago, anti-choice lawmakers in Alabama passed a total abortion ban in an attempt to bait the freshly Trumpfied federal courts into overturning Roe v. Wade. Any day now, a court in Missouri will decide if the state’s only abortion clinic must close. Just a month and a half ago, my colleague Imani Gandy and I were at the U.S. Supreme Court for oral arguments in June Medical Services v. Russo, the poster child for bad-faith anti-choice attacks on abortion rights.

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In June Medical Services, the Roberts Court will decide if they should uphold a Louisiana admitting privileges requirement—otherwise known as a clinic shutdown law—identical to a Texas admitting privileges requirement the Court previously declared unconstitutional in 2016. Since those arguments, Louisiana officials have tried to use COVID-19 as an excuse to ban abortion, prompting yet another lawsuit. Meanwhile, yet another lawsuit challenging the state’s web of anti-abortion restrictions is working its way through the federal courts. That brings the number of active lawsuits in Louisiana to protect abortion rights and access to three. Three lawsuits challenging three different attacks on abortion rights and access by Louisiana lawmakers, all happening at the same time.

So I ask again, in all sincerity: Will this shit ever end? Because while anti-choice lawmakers are smearing abortion providers in court filings as profiteering predators unable to advocate in court for their patients and using COVID-19 as yet another ruse to defund Planned Parenthood, pregnant people from Texas have been forced to travel hundreds of miles to Colorado, New Mexico, and Nevada for abortion care, or forgo care altogether.

While attorneys from the anti-choice litigation firm the Thomas More Society accuse providers of wasting personal protective equipment and insist that abortion clinic protesters are performing an “essential” service in harassing patients and providers, clinics struggle to stay open.

There have been glimmers of good news. Some states have used the COVID-19 outbreak to reaffirm that abortion is essential health care, because well, it is. And while Fifth Circuit conservatives have gone rogue, other federal courts considering similar bans have so far done their jobs, seen these COVID-19 bans for the nonsense that they are, and have prevented states from enforcing them. 

That’s all good news. But it’s good news tempered through the lens of a cascading attack on abortion rights that has only become more brazen as anti-choice lawmakers grow increasingly confident they’ve placed enough judges on the bench to re-criminalize abortion. That confidence is not misplaced. Here’s Fifth Circuit Court Judge James Dennis dissenting from Monday’s decision to once again allow the Texas COVID-19 ban to take effect.

This Circuit thus once again does not apply the applicable rules of law because of the subject matter of the case, and, equally troubling, ignores the words of its own ruling from less than two weeks ago. I again echo the words of a colleague in dissent in a case now before the United States Supreme Court: “It is apparent that when abortion comes on stage it shadows the role of settled judicial rules.”

Roughly translated, that passage of Dennis’ dissent poses a pretty basic question: Will this shit ever end? 

Dennis makes the point that when it comes to abortion rights, precedent means very little to judges and justices personally opposed to abortion. That’s true for the Fifth Circuit judges like Kyle Duncan, a Trump appointee who allowed the Texas ban to take effect, and it’s true for the conservatives on the Supreme Court. On Monday, Justice Brett Kavanaugh went out of his way to question the role of precedent in abortion rights case in a concurring opinion in a case having nothing to do with abortion rights. The opinion, like others issued by fellow conservative Justice Clarence Thomas, sends a clear signal that abortion rights precedent is on the ropes. And anti-choice lawmakers are listening.

So if precedent means little when it comes to abortion rights as Dennis suggested this week, then the answer to my question at the top of this piece is “yes.” The bad faith attacks on abortion rights will end as soon as the conservatives on the Roberts Court issue a ruling overturning Roe v. Wade entirely. And not one moment before then.

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