Combative State Lawmakers Get Ready To Ride A Wave Of Anti-Abortion Legislation All The Way To The Supreme Court

Why The Midterm Elections Have Everything To Do With Whether They’ll Be Successful


Republican State lawmakers in Iowa passed a law this week that forbids abortion at first detection of a fetal heartbeat: normally around 6 weeks. That’s often around when a woman first learns she’s pregnant (or even before). The bill awaits the signature of Iowa’s Republican, anti-abortion Governor.

A lot of states have bans or restrictions on abortions after 20 or 24 weeks. 6 weeks would be by far the most restrictive and radical, going way outside current federal law, the cornerstone of which is Roe v. Wade. And that’s deliberate: lawmakers say they want to force a challenge to their law, propelling it all the way up to the Supreme Court.

Planned Parenthood says the bill is an “intentionally unconstitutional ban on 99 percent of safe, legal abortion, designed to challenge Roe v. Wade.” And the people who crafted the law pretty much agree: one Iowa Republican State Senator telling Reuters “We created an opportunity to take a run at Roe v. Wade – 100 percent.”


Iowa State House


Iowa’s got competition: Mississippi and Kentucky have also recently passed anti-abortion laws with the same outcome in mind, though neither is as extreme as Iowa’s.

This represents a complete 180 from the strategy of anti-abortion activists in recent years: resigned to the fact that they probably couldn’t get Roe v. Wade overturned, they instead focused on chipping away at existing laws by not exactly challenging the legality of abortion, but making them harder to get and provide. Now that’s all changed: they’re going straight for their ultimate objective. It’s easy to see why: Trump put a very conservative judge on the Supreme Court, and it’s likely he’ll get the chance for at least one more even if he doesn’t get elected to a 2nd term.

Of course there’s no guarantee even Conservative Supreme Court justices will be willing to completely reverse more than 4 decades of precedent. But while it’s rare, it’s not unheard of either. And even if they don’t reverse things completely, it’s still potentially a win for anti-abortion activists. It could also be the key to Trump’s political future: he’s so mired in scandal right now the only reason his base isn’t eroding at all may be his promise that Roe v. Wade is going to be reversed “automatically, in my opinion, because I am putting pro-life justices on the court.” (We’ll talk a more in depth about this in the next week or two.)

So this’ll all be fixed if Democrats flip the House, right? Actually, that would likely have no impact at all, since the House has no say in who gets to be a Supreme Court Justice. It’s in the Constitution: the President nominates Supreme Court Justices; the Senate approves them. (Appellate Court appointments which Senate Majority Leader Mitch McConnell seems to have made his main priority this year, could also be a major factor). 

Pretty much the only way to stop this momentum, or try to, is to flip the U.S. Senate. That’s a much taller order in 2018 when 26 seats up for election are being defended by Democrats or Independents (like Bernie Sanders), compared to just 9 for Republicans.

Of course, there’s no guarantee some Red State Democrats won’t go along with Trump’s choice(s) anyway. Especially since Supreme Court nominees tend to be very circumspect about how they’d vote on certain issues. Gorsuch avoided the abortion question by saying during his Senate confirmation hearing: “I have offered no promises on how I’d rule on any case to anyone and I don’t think it’d be appropriate for a judge to do so.”

But if Democrats are successful in the mighty task of regaining the Senate this year, it should get much easier after that. In 2020 only one Red State Democrat is up for reelection: Alabama’s Doug Jones. (Unless you consider Michigan to be a Red State now: in that case there are two). So the political risk of opposing one of Trump’s nominees will be greatly reduced.