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Wednesday, June 27, 2018

The ICEing on the cake: of course Kennedy is retiring

by digby

Going all the way back to Bush vs Gore it was clear to me that for all of being the unpredictable "swing vote" he would always do the most harm at the worst moment. So of course he's retiring at a time when the minority of deplorables are seizing power illegitimately under the illegitimately elected Donald Trump. Of course he is.

He's been voting down the line with the wingnuts throughout this session so perhaps there won't be much of a change. But there are some areas he's mapped out that will likely be overturned by a more explicitly right wing zealot. This piece by Dylan Matthews at Vox spells out exactly what we're looking at. It's long and complicated but this has to be the most obvious. Donald Trump is the most blatantly misogynist president in American history so of course, this will happen under his rule:

Abortion in America after Kennedy

Nothing is guaranteed, but if Anthony Kennedy retires under Trump, his replacement will be much likelier to join a decision overturning Roe v. Wade and giving states the ability to ban abortions as early as the first trimester.

This may take years after the replacement’s confirmation; a state would need to pass a law clearly incompatible with the Court’s existing approach to abortion rights and wait for the challenge to reach the Supreme Court before the new justice would have a chance to join a ruling. The anti-abortion movement might choose a more cautious strategy, instead chipping away at Roe with measures that fall short of outright bans. But with Kennedy gone, the votes for an outright reversal of Roe would probably be there.

If Kennedy (or one of the liberals) leaves the court, UC Berkeley law dean and constitutional law expert Erwin Chemerinsky writes, “There almost certainly will be a majority to overrule Roe v. Wade and allow states to prohibit abortions.”

It’s certainly possible that Chief Justice Roberts will decline to join an anti-Roe majority due to precedent and a desire to avoid a massive public backlash, but there are reasons to think it unlikely. Roberts has on two occasions joined decisions overturning past Supreme Court precedent: one was a case on the right to counsel and how it can and cannot be waived, and the other was Citizens United, which sparked massive national outrage.

Roberts voted to overturn precedent anyway, knowing a backlash was inevitable. Indeed, in his concurrence to Citizens United, Roberts suggested that “hotly contested” issues might provide for exceptions from the principle of stare decisis and respect for precedent. Also possible is that instead of decapitating Roe in one blow, Roberts will instead “vote to kill it with 1,000 cuts rather than overturn it outright,” as UC Irvine Law’s Richard Hasen puts it.

Perhaps we’ll see another case like Whole Women’s Health (a 2016 decision where Kennedy joined the Court’s liberals in striking down Texas regulations meant to disrupt abortion provision), but this time the court sides with the state’s restrictions. Perhaps another state takes its 20-week ban to the Supreme Court, which then relaxes Roe and rules that you can bar abortions that early in a pregnancy. Bit by bit, the Court enables states to get more creative and bold in their restrictions, until one day it finally gives up the ghost and announces Roe is dead.

In the aftermath of a reversal, the current gap in abortion services between red and blue states will become even more severe. The pro-abortion rights Guttmacher Institute classifies 29 states as “hostile or extremely hostile” to abortion rights, of which all but two voted for Trump in 2016 (the exceptions are Rhode Island and Virginia). It rated only 12 as supportive, with Montana the only supportive red state.

There are already substantial gaps between states in access to abortion. A study by Guttmacher researchers found that while the average American woman aged 15 to 44 lives fewer than 11 miles from the nearest clinic, that number varies dramatically from state to state and county to county. In Mississippi, the average woman lives 68.8 miles from the nearest clinic. In North Dakota, the number is 151.6. A lot of the variation is just a function of how rural the state is, but the political environment appears to be a significant factor as well.

RU-486 will become more prevalent --- until the wingnuts find a way to outlaw that as well.

Meanwhile, these "pro-lifers" will be getting their death penalty celebration outfits cleaned and pressed.

This is a bad day.