Republican leaders asked the Supreme Court to end legal abortion. They may get their wish.

Everything from calling themselves "pro-life" to pushing for so-called "common sense" restrictions on reproductive rights has been leading up to this.
Image: Anti-abortion protesters gather to hear Vice President Mike Pence speak at the March for Life rally on Jan. 27, 2017
Anti-abortion protesters gather to hear Vice President Mike Pence speak at the March for Life rally on Jan. 27, 2017 in Washington.Tasos Katopodis / AFP - Getty Images file
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By Lauren Rankin

Finally, Republicans are saying what they have always meant about abortion: They want to make it illegal for everyone all the time, full stop.

On Thursday, more than 200 Republican members of Congress signed an amicus brief filed by the anti-abortion organization Americans United for Life, asking the Supreme Court to reconsider and potentially overturn the landmark abortion rights rulings in Planned Parenthood v. Casey and Roe v. Wade. That represents fully 80 percent of congressional Republicans, and included 39 Republican senators and the three top House Republicans.

The impetus was the case June Medical Services LLC v. Gee, which the Supreme Court agreed in October to hear; on the docket in March, it will be the court’s first time hearing a case on abortion rights with Justice Brett Kavanaugh on the bench. The case centers on a 2014 Louisiana law that requires abortion providers in the state to have admitting privileges at a nearby hospital, known in reproductive rights circles as a TRAP law (short for Targeted Regulation of Abortion Providers). If the court sides with Louisiana, all but one clinic in the state will be forced to close — and many people’s access to abortion services will be eliminated in other states across the country that either have or will pass similar laws.

The Supreme Court's decision to hear the Louisiana law surprised many observers because it is identical to a Texas law that was struck down by the court a mere four years ago. But Republican supporters of the law were using very different language then, both in public statements and before the courts: They framed the admitting privileges provision not as a means of curtailing abortion, but as a means of protecting the health and safety of women. “The common-sense measures Texas has put in place elevate the standard of care and protect the health of Texas women,” Texas Attorney General Kenneth Paxton said before oral arguments in 2016.

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Abortion rights supporters and medical organizations knew better, and so did the court, not least because abortion is 14 times safer than childbirth. The court ruled that the law was unconstitutional because it placed an “undue burden” on a patient by making abortion impossible to access with no health or safety benefits.

The state of Louisiana's case is fairly similar, except that they are asking the court to rule that clinics don't even have the standing to represent the interests of patients when it comes to whether so-called TRAP laws impede their access to abortion. The state isn't even asking the Supreme Court to overturn Roe v. Wade (and might not need the court to do so in order to have negative consequences) — but, seeing an opening in Kavanaugh, Republicans and anti-abortion advocates have now pounced, and made clear that every appeal for women's "health and safety" is really an effort to eliminate the right to abortion.

Abortion is often painted as a politically intractable issue, one with no clear winner — usually by pundits with no clear understanding of the polls or anti-abortion advocates with an axe to grind. But the data paint a different reality: While the American electorate is largely split when asked if they identify as "pro-choice" or "pro-life" — which is why anti-abortion advocates prefer that term — they are emphatically clear on where they stand with regards to legal abortion: 77 percent of Americans want to see Roe v. Wade upheld.

Republicans and anti-abortion advocates alike have long known that outright banning abortion is politically unpopular. Rather than abandon the goal, though, they have steadfastly maintained a delicate rhetorical dance when it came to abortion. For decades, Republicans have assured the American public that they don’t want to overturn Roe v. Wade but make abortion akin to something that is "safe, legal and rare," all while quietly laying the groundwork to make abortion illegal again.

It’s fitting, then, that Americans United for Life drafted the amicus brief that broke the GOP doublespeak: They’ve been the key organization drafting model state legislation that has incrementally gutted abortion access and rendered Roe vs. Wade all but meaningless for millions while avoiding the spotlight.

From the 70s onwards, AUL was at the forefront of Republican efforts to pass or defend in courts a whole host of anti-abortion legislation at the state level, including “parental consent” laws, which mandated that a minor get permission from a parent or a judge before being able to access an abortion, and bans on certain late-term abortion procedures (The Casey ruling, which their amicus brief this week asked the Supreme Court to overturn, is one they still count as a partial loss because it failed to totally overturn Roe v. Wade and created the "undue burden" standard.)

Then in the 2010s, state legislatures — many dominated by far-right “tea party” Republicans — began to pass ever-more creative abortion restrictions, many of which were promoted by AUL, including restrictive mandatory waiting periods, mandatory, medically unnecessary ultrasounds, forced counseling with false or unwanted information, the aforementioned TRAP laws, 20-week abortion bans and so-called "heartbeat bills," (based on junk science that a fetus could feel pain) and, most recently, legislation that may mandate the forced reimplantation of ectopic pregnancies, which is dangerous and unproven All of these are built around arguments that it's not that all abortions should be illegal per se, but that some should be — for health and safety reasons, of course.

Over the years, though, Republican doublespeak has lulled too many Americans who otherwise support legal abortion into a sense of complacency. They've continued to essentially make abortions more and more difficult to obtain or all but illegal, while telling us what we wanted to hear: “We’re protecting women!” “We’re giving women more options!” “We’re making abortion safer!” All the while, they were methodically laying the groundwork for the moment they could simply make it illegal everywhere, once they had a Supreme Court stacked against abortion and an electorate too inundated with misinformation and riddled with gerrymandering and voter suppression to actively fight back.

They’ve done it under our noses, in front of our faces, for decades. They have been restricting and trying to ban abortion in order to create Supreme Court test cases, rendering Roe v. Wade meaningless for an ever-increasing number of people, all while steadfastly maintaining that they were being reasonable — that they were the ones working to improve abortion safety — when in reality, they were working to end legal abortion all along. Republicans may have been gaslighting Americans to the point of no return with Roe v. Wade.

And now we’re all about to see just how much that gaslighting has paid off for them, and how steep the price is that the vast majority of Americans who support the legal right to abortion will have to pay in return.