Donald Trump’s Supreme Court is preparing to dismantle the constitutional right to a safe and legal abortion.
In its landmark 1973 decision in Roe v. Wade, the court held that the fundamental right of privacy protects a pregnant woman’s choice to terminate a pregnancy during the first three months of pregnancy — before a fetus becomes viable and can survive outside of the womb.
At issue in Dobbs v. Jackson Women’s Health Organization is a Mississippi law that bans almost all abortions after the 15th week of pregnancy, long before a fetus becomes viable.
In announcing that it would hear the case, the court said it would examine whether all pre-viability prohibitions on elective abortions are constitutional.
The writing has been on the wall since 2016, when Donald Trump, then a presidential candidate, promised to appoint supreme court justices who would vote to overturn Roe v. Wade. “That will happen automatically, in my opinion, because I am putting pro-life justices on the court,” he said. “I will say this: It will go back to the states, and the states will then make a determination.”
Elections have consequences and Trump kept his word.
Trump appointed three United States Supreme Court justices and created a 6-3 conservative super-majority.
Conservative states got the memo, and women’s reproductive rights have been under constant attack. Ten states have trigger laws that would ban abortion the minute Roe v. Wade is overturned.
In early 2019, after Trump had appointed two justices, Neil Gorsuch and Brett Kavanaugh, sixteen states, reading the tea leaves and looking for a Supreme Court case to overturn Roe v. Wade, filed or passed bills that banned abortions after six weeks. At six weeks, many people even know they’re pregnant. Some of these bills criminalized abortion providers and even stopped women from having an abortion in the event of rape or incest.
But they fell short last year when the Court struck down a restrictive Louisiana abortion law by a 5-to-4 margin, with Chief Justice John Roberts casting the deciding vote.
In a twist of fate, history has since intervened with the assistance of a Machiavellian power play executed by Trump and Senate Republicans.
On September 18, 2020, 46-days before the election, Ruth Bader Ginsburg, a champion for women’s rights, passed away.
Before Ginsburg was even buried, Trump announced the nomination of Amy Coney Barrett to fill her seat and one month later, Republican senators appointed her just one week before America stripped them of their power.
Senate Republicans disingenuously ignored their own 2016 precedent when they refused to allow President Obama’s nominee, Merrick Garland, a confirmation hearing 8 months before the 2016 election, because it was too close to the election.
Barrett was a law professor when she signed onto a 2006 newspaper ad by Right to Life of St. Joseph County, an anti-abortion group, in which she said she opposed “abortion on demand and defended “the right to life from fertilization to the end of natural life.” And, anyone who wonders how Barrett will ultimately vote, needs only to be reminded of Trump’s litmus test for Supreme Court nominees he announced as a candidate.
Now that they have their fifth vote, the court will dismantle Roe and your zip code will dictate whether women have access to safe and legal abortions.
As Trump predicted, the issue will be fervently pursued by politicians who have been chomping at the bit to ban abortions and create other restrictions. Nancy Northup, president and CEO of the Center for Reproductive Rights estimates that as many as 24 states could ban abortion completely.
Colorado should consider enacting legislation now that explicitly protects the right to abortion, which would remain in effect if Roe is overturned. Colorado has a rich history of supporting women, including being the first state to pass women’s right to vote in 1893 and being the first state to loosen restrictions on abortions in 1967.
And, the fight will be taken to Washington D.C. too. Biden’s 36-member commission is contemplating expanding the number of supreme court justices and is expected to issue their report later this year. A group of lawmakers have already introduced legislation to give Biden the power to stack the court by expanding the court from 9 to 13 justices.
The number of justices has remained at nine since 1869 and it would be a gross abuse of power to politically interfere with an independent branch of government. Nothing would stop a future Republican President with a majority-controlled Senate from expanding it again so that he or she could stack the deck.
The decision could be a wild card in next year’s midterm elections. Public opinion is on the Democrat’s side. National polling has long shown strong support for Roe and against overturning it. Planned Parenthood opines that 25 million women of reproductive age reside in states that could ban abortion rights and many of these women are going to be very angry. And, that’s just the tip of the iceberg as highly energized pro-choice women will turn out in record numbers.
That’s guaranteed bad news for Colorado Republicans in a blue state. Republicans will need to nominate pro-choice candidates if they have any chance of winning statewide, holding on to Boebert’s seat or winning in the new 8th Congressional District.
Doug Friednash is a Denver native, a partner with the law firm Brownstein Hyatt Farber and Schreck and the former chief of staff for Gov. John Hickenlooper.
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