Supreme Court Justice Anthony Kennedy did not announce that he is retiring today. Not since Clint Eastwood didn’t deliver a sequel to his weird 2012 RNC chair speech were so many so delighted by the inaction of an octogenarian.
By defying Chicken Little speculation and not announcing his retirement, the Reagan appointee gave pro-choice adherents room to breathe a sigh of relief. Since Donald Trump’s inauguration, the Court’s balance has hovered like an anxious fog in the minds of liberals. If Kennedy retires, President Trump gets to appoint another Supreme Court justice, the balance of the court tips slightly to the right, and, theoretically, the Court has the votes it needs to turn the country sharply right, wreaking havoc on decades of progress and undoing Roe v. Wade. Theoretically.
Kennedy isn’t the only Justice whose fate should keep liberals up at night. If Kennedy doesn’t retire this term, there’s always the next. And there’s the fact that Justice Ruth Bader Ginsburg, arguably the court’s most ardent advocate for women, is 84 years old. American women’s access to abortion hasn’t been this fragile in decades. We were warned.
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Roe won’t disappear immediately after Kennedy retires. The Senate would need to install a new justice, and after that justice was seated, another case involving abortion rights would have to trickle up through the court system until it landed before the nine. It could be years before that happens, or there could be a legal challenge to Roe in the pipeline as we speak.
Even if Roe v. Wade is overturned, abortion won’t immediately become illegal everywhere. Rather, the ruling would set off a confusing domino effect across the country, and unleash a reality where women living within miles of each other could enjoy vastly different levels of reproductive (and, by extension, economic) freedom. According to Guttmacher, seven states—Connecticut, New York, California, Hawaii, Maine, Maryland, Washington, and Nevada—have laws on the books protecting women’s access to abortion, even if Roe is overturned. Four states—Louisiana, North Dakota, Mississippi, and South Dakota—would make abortion illegal immediately upon Roe being overturned. Overall, 19 states currently have inert laws on the books that would no longer be unconstitutional if Roe is, to paraphrase Vice President Mike Pence, sent to the “ash heap of history.” It’s another twist of cruelty that the states that restrict abortion the most already have high rates of poverty.
One would think that by making childbirth compulsory for women who get pregnant, conservatives would want to partner abortion restrictions with policies that make motherhood more economically feasible and less likely to drive women into poverty and dependence. But that’s not the case. On the same day that Kennedy’s silence made news, a health care bill snaking its way through the Senate’s backrooms threatens to slash Medicaid and other benefits for mothers, all while making it optional for states to stop requiring insurance companies to cover maternity care.
America, remember, is still the only industrialized nation that doesn’t require paid leave for new parents.
If all these ugly planets align, we could be facing a future where many women would be penalized for the decision to have a child, or not have a child, if either could be called a decision at all anymore. In some states, a pregnancy would put women in range of poverty’s irreversible gravitational pull. It’s June 2017, and American women are behind the 8 ball. How the hell did we get here?
Kennedy isn’t stepping down right now. But that should be no comfort for pro-choice advocates; there should be no wash of relief one feels upon learning her coastal state will protect her personal right to choose. Even those strongholds of feminist gains are tenuous; a single election can flip a state house from blue to red. Conservatives have been working tirelessly for decades to set up the circumstances that are coming due today, and liberals, smugly overconfident that history was on a course of their design, did not do enough to stop it.
Thinking in dystopian Gilead-esque theoreticals isn’t pleasant. It’s much more fun to dwell on the latest snackable feminist slight, like whether or not, say, Taylor Swift’s new video fat-shames or if sex-positive swimwear for tweens is a tool of the patriarchy. But abortion opponents have been playing a long game for decades, and the reticence of many on the pro-choice side to engage with the worst case scenario is its biggest weakness.
The fight for abortion rights is so much bigger than viral outrage. It’s so much more than a medical procedure, or nine months of pregnancy, or 18 years of parenting. Reproductive choice is at the root of American women’s ability to spend their time, money, and energy on things other than pregnancy and child rearing. It has determined the mores of youth, driven up the age at which people marry, offered men and women the option to have sex purely for pleasure, offered an alternative to women’s economic dependence on male providers.
Women who remember a time before Roe have been warning us. Organizations that advocate for access to reproductive choice have been warning us. In a future post-Roe world, obtaining an abortion will be like obtaining anything illegal—women of means will likely still be able to get it and get away with it. The poor and nonwhite will be disproportionately punished at every turn. And the space between haves and have nots will yawn further open, rending the fabric of American progress.
We were warned. We didn’t listen. And now, our best hope rests on two people in their 80’s holding on until we get our act together enough to elect a different president.
