The Strategy Behind Heartbeat Bills, Abortion Bans and Extreme Regulations

Conservative states have been attempting to chip away at Roe v. Wade through the 9th Amendment for years, but something is different now. These newer restrictions on abortion are occurring almost daily and they are on a fast track. There is a reason that several states are attempting severe limitations to legal abortion at different levels and with such expediency; that reason is newly appointed Supreme Court Justice Brett Kavanaugh.

The reasoning for so many different types of bills from different states all at the same time is strategic. It gives those who want to restrict current abortion laws many options. If a state passes a law, then that law stands until a higher court finds the law unconstitutional and formally creates an injunction. So while these new state laws are being appealed, they stand as the law of that state. Moreover, if conservative states start passing laws with restrictions on abortion rights that are restricting in varying degrees, then they stand the best chances for one of those laws being upheld at the Appeals Court or Supreme Court level. 

So if Kavanaugh can justify upholding any of these new southern laws by claiming they are not a total ban, but are simply additional legal requirements being added by the state, Roe v. Wade is in real trouble. 

So for example, several southern states have passed “Heartbeat Bills” which restrict a woman from having an abortion once the fetal heartbeat is detected, which is typically at 6-weeks and is often before many women even know they are pregnant. At the same time, this more recent proposal in Alabama, which bans all forms of abortion legal under Roe v. Wade, except in the case of physical danger to the mother’s life, is likely to go into effect once the Conservative governor of the state signs it into law. These two types of abortion bans will and are being challenged in the courts. If conservative states are passing several different kinds of restrictive abortion laws that vary in degree of limitation, but they pass them all at the same time, then they will likely pass through the appeals process at roughly the same time. Depending on how conservative the Appeals Court judges are, some laws might make it through and still be in effect and some might be stopped with an injunction or stay. But ultimately, if there are many cases with a similar subject matter, such as abortion rights under Roe v. Wade, being presented to the Supreme Court for review at the same time, the odds of SCOTUS granting certiorari for those cases becomes limited. The Supreme Court does not often take multiple cases for review that deal with the same fundamental subject matter. It’s a calculated way for conservative states to avoid having their bad laws overturned and to keep them in place for as long as possible.

Once one of these cases is reviewed by the Supreme Court, those who helped to enact these laws are counting on the opinion of Brett Kavanaugh, who described Roe v. Wade's as “settled” and "important precedent" in his confirmation hearings as a way to side-step really answering questions. His past rulings and opinions about what he would do specifically in a ruling that attacked Roe makes the answer clear-he is in favor of allowing states to impose restrictions that make obtaining an abortion more difficult. Kavanaugh has narrowly interpreted when a woman can exercise her rights under Roe v. Wade, which means that he can upholding the law itself, while permitting the government to impose stricter regulations on abortion, like adding requirements that could delay the procedure or allow for stricter rules for physicians who would perform the medical procedures. So if Kavanaugh can justify upholding any of these new southern laws by claiming they are not a total ban, but are simply additional legal requirements being added by the state, Roe v. Wade is in real trouble. 

Step 1 was to get Brett Kavanaugh appointed to the Supreme Court. Step 2 was to enact multiple laws in multiple states so that they could work their way up the appeals process. Step 3 is Kavanaugh paying back all of the favors it took to get him appointed.

The sudden push to get Kavanaugh on the Supreme Court, given all of the controversy surrounding his qualifications and appropriateness, should now be very clear. There are still questions regarding his substantial debt that suddenly disappeared right before his confirmation hearings were to begin that add to the argument of a Conservative Agenda to eliminate abortion rights through this channel. The support for Kavanaugh from Conservative groups like the Heritage Foundation and the Judicial Crisis Network, who spent 10 million dollars to back Gorsuch and over 3 million on Kavanaugh, was only the first step in enacting a very well-calculated plan to restrict a woman’s right to choose. Step 1 was to get Brett Kavanaugh appointed to the Supreme Court. Step 2 was to enact multiple laws in multiple states so that they could work their way up the appeals process. Step 3 is Kavanaugh paying back all of the favors it took to get him appointed. The fact that these groups moved forward in the face of the overwhelming scandal that was the Kavanaugh Confirmation, just proves their commitment. 

This was always the plan. 

Listen to my discussion with BBC Newsday journalist, Kriszta Satori, about this topic starting at 14 minutes in.

Amee Vanderpool writes the “Shero and a Scholar” Newsletter and is an an attorney, contributor to Playboy Magazine, analyst for BBC radio and Director of The Inanna Project. She can be reached at avanderpool@gmail.com or follow her on Twitter @girlsreallyrule.