Legal Attack on Women’s Right to Choose (How Did We Get Here?)

There is a calculated attack happening across this country. It’s an attack on women and their bodies. In the past month, we have seen state legislative bodies in Missouri, Ohio, and Georgia pass restrictive abortion laws. Last week we saw the Alabama Senate pass a ban and the Governor, Kay Ivey, signed it into law. Georgia’s Governor, Brian Kemp, also signed a controversial abortion bill, the heartbeat bill, into law. But the bill signed by Ivy in Alabama is currently the most restrictive in the country. The bill signed by Ivy bans abortions — with the exception of when the life of the mother is in jeopardy — in all circumstances. Stop and read that sentence again. If a woman is raped or a victim of incest, according to the Alabama law, she must carry it to full term.

This is extreme to say the least. This bill along with the others passed in Georgia, Ohio, and Missouri all seem to be aimed at one thing, getting their legal challenges heard at the Supreme Court. If legal challenges get to that level then Pandora’s box is open for the Roe v. Wade debate.  Ohio passed a fetal heartbeat bill, which would ban a woman from having an abortion once a heartbeat is detected. Some state legislative bodies are even calling it a 6-week ban, a time when some women may not even know they are pregnant. Georgia’s Governor Kemp signed something similar. In Tennessee, the legislative house passed a 6-week heartbeat bill, but it was defeated in the state Senate and sent to summer study, but is likely to be reintroduced next legislative season.

It would be convenient to rant about the way men are legislating over women’s bodies and giving them no chance to discuss or fight back against that legislation. Instead, I want to challenge you to relive a brief rundown of events that have gotten us to 2019 and the heartbeat bills. The breakdown is below:

1. 2008-2009: America elects the first Black president, Barack Obama. 
2. Early 2010: SCOTUS rules in ‘Citizens United v. Federal Election Commission (FEC)’ that political spending is a form of free speech that’s protected under the First Amendment. The controversial 5-4 decision effectively opened the door for corporations and unions to spend unlimited amounts of money to support their chosen political candidates. Hate that your politicians are bought and sold by corporations? Blame this.
3. Late 2010: Ahead of the midterms, Senate Minority Leader Mitch McConnell vows to make President Obama a “one-term president” and Republicans declare a nationwide takeover of state legislatures. This begins the slow but steady Republican calculation to take over.
4. 2010 Midterms: Thanks to the Citizens United case, Republicans flood the airwaves with political advertising to influence down-ballot elections. Republicans pick up 675 state legislative seats; swept several governorships, including Tennessee; and Republican control increased from 14 states to 26 state legislatures. They also take control of the U.S. House of Representatives, winning 58 seats.
5. 2011: Now that Republicans effectively have the states on lock, states begin to enact strict voter ID laws, including Alabama, Mississippi, South Carolina, Texas, and TN.
6. 2012: President Obama is re-elected. All is well with the world because we now have the Affordable Care Act (aka: Obamacare) and our president is still Black.
7. 2013: The Supreme Court (SCOTUS) guts the Voting Rights Act of 1965 in the ‘Shelby County v. Holder’ case. As in, Shelby County, Alabama versus Attorney General Eric Holder. As in, the (same) Voting Rights Act championed by Civil Rights activists like Dr. Martin Luther King and Congressman John Lewis. The ruling basically said, nope racism doesn’t exist anymore so Southern states no longer need permission (i.e. “preclearance”) from the federal government to change their voting laws. The decision allowed 846 jurisdictions to close, move or change the availability of local polling places (mostly in predominantly African American counties) without federal oversight. There were also cuts to early voting and purges of voter rolls. Virtually all restrictions on voting after the ruling were by Republicans.
8. 2014: Things begin to take a turn for the worst. Republicans continue their congressional takeover during the 2014 midterms. Republicans gained control of U.S. Senate and picked up more seats in the U.S. House of Representatives.
9. Early 2016: Supreme Court Justice Antonin Scalia dies. His death begins the conversation about who will replace him and President Obama is granted option to choose. Obama chooses Merrick Garland, but both the Republican senators and Democratic senators have to vote on his nomination. Senate Majority Leader Mitch McConnell blocks the nomination, claiming it’s too close to a presidential election so the next president should pick. 
10. Late 2016: Donald Trump is elected president. Now Republicans are in control of the legislative branch and executive branch. Time to take over the judicial branch.
11. 2017: Trump has his eye on the SCOTUS pick left vacant by Obama. 
12. By nominating conservative judge Neil Gorsuch to the Supreme Court. (Remember, elections have consequences, and in 2014, just 36.4% of eligible voters nationwide turned out in 2014 – the lowest since World War II—and Republicans gained control of the Senate, who confirms all federal judges.)
13. Fast forward to 2018 and by now, 34 states have some form of voter ID laws. Supreme Court Justice Anthony Kennedy announces his retirement. Trump nominates Brett Kavanagh as his replacement. Senate confirms Kavanaugh in October, shortly before the midterms, solidifying the bench as a reliably conservative 5-4 majority.

It’s now 2019 and Republicans control the state legislature in 31 states. That is over half the country. Congress is divided – Democrats took back the House in 2018, but Republicans still control the Senate, Presidency, and Supreme Court.

What we are seeing play out today is a deliberate playbook, run by American Legislative Executive Council, also known as ALEC. This is the conservative right-wing organization that essentially creates all the bills and runs them through state legislative, congressional and Senate bodies across this country. They can’t do it unless our elected officials agree to push their proposed legislation. It’s interesting to note that ALEC will pay for members of Congress to attend some of their meetings where they discuss policy and legislation. Elected officials then go back to their respective seats and run their (ALEC) bills. Ultimately, the bills introduced by legislative branches across the country are so egregious and blatantly unconstitutional in an attempt to move the battle to friendly territory – the courts. And we see this happening with the abortion bills across the South. And in case you want even more examples let’s take another look at some recent history and see how there is calculation about the process of moving controversial legislation to the court system.

As soon as Trump became president he introduced the Muslim travel ban. A few judges across the country struck it down because they believed it was unconstitutional. It is now an active open court battle, but the dangerous part is Trump has already had two successful appointees to the Supreme Court and has been placing members on the Circuit Courts as well. This is important to note because states can fight these laws and challenge them, but if they end up in a court where a judge has been appointed by Trump or has a conservative view of the law then these abortion laws could be upheld along with other extreme laws coming out of Republican-led legislatures.

Trump has called for the separation of migrant families at the border. Again, this is something that judges are challenging and it’s heading to legal proceedings within the judicial system. The Secretary of Education, Betsy Devos, and her team are challenging public education with school vouchers. Legal proceedings will take place. Again, this will be headed to the courts. Voter registration is also under attack in states like Tennessee pushing the envelope and criminalizing the civic act. The American Civil Liberties Union (ACLU) is suing and guess where this will end up, in court. And let’s not forget about the 2020 census. The President is trying hard to remove some provisions on how Americans are counted, which will affect funding for states. There are lots of unknowns about the upcoming census, but one thing that will likely take place – a court battle.

When we talk about the calculated attack on women and their bodies, we have to look at how long this has been in play. The attack on abortion laws are systematically set up to eventually end up in the Supreme Court in an attempt to overturn Roe v. Wade. We should be upset about abortion bans. Louisiana has a case before the Supreme Court and we should all pay close attention to its outcome. It’s a law that would force doctors to have admitting privileges at a hospital within 30 miles of where an abortion is performed, a structure that those opposed to the law insist violates the “undue burden” notion. In 2016 the state of Texas had a similar bill struck down in court.

We will begin to see court cases pop up about abortion bans because as soon as they are signed, they will immediately be appealed. It will be up to state judges, first, to decide their fate and with the stacking of conservative judges across the country we can only hope women’s right to choose is just as important to them as forcing a woman to carry an unwanted baby that the government doesn’t want to financially support once it gets here.