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3 Test Cases Progressives Should Bring in a Post-“Roe” World

In an ideal world, the Supreme Court’s upcoming ruling nullifying Roe v. Wade and freeing the states to force people to give birth against their will would simply be ignored by a just executive. In an ideal world, President Joe Biden would make federal facilities available for abortion and family planning services. He would then provide physical protection for both the health care providers and the pregnant people seeking health care. For its part, an ideal-world Congress would immediately pass federal legislation protecting reproductive rights, while in the upcoming midterm elections the people would vote in leaders who stand opposed to the Christo-fascist takeover of American government.

Also in an ideal world: The ginkgo tree in my yard would sprout cash instead of leaves, and I’d use my new fortune to ferry pregnant people to safety. But that seems about as likely as the Democrats in the United States Senate getting off their ass and protecting rights instead of fundraising off the fear of losing them.

Roe will be taken away, and states will pass laws banning or functionally banning abortions, and Democrats will do nothing other than telling their voters (who have already handed Democrats control of the White House and both Houses of Congress) to “vote harder,” because apparently Democrats need a supermajority to combat what Republicans can do with a minority.

But while we wait for the people elected to defend women’s rights to wield power like the people elected to take them away always do, there is another Republican strategy progressives should use to fight the new anti-abortion laws: We should sue. Every state that passes a forced-birth mandate should face a deluge of lawsuits.

Oh, we’re going to lose those lawsuits. I don’t want to give anybody false hope. People of conscience are going to lose, and lose hard. The judges who do not believe that women should be treated as full people will not be stopped or flummoxed by compelling legal arguments. Conservative justices on the Supreme Court who have demoted pregnant people to second-class citizens who lose their personhood rights at the moment that conception takes place are not suddenly going to lose their nerve because their judicial hypocrisy is laid bare. But still, we should sue, and lose, and sue, and lose, and keep suing and keep losing.

Why? Because, according to conservatives, suing is the only way to register opposition to their theocratic laws and the only way to lay the groundwork to overturn this new precedent in a generation or two.

If you go back and listen to the Senate confirmation hearings of the justices who are about to vote to overturn Roe v. Wade, you’ll note that they all lied about their respect for precedent. But you’ll also note that they laid the groundwork to reverse themselves by repeatedly talking about how often Roe has been challenged. Indeed, in the draft opinion, Justice Samuel Alito references these near-constant challenges to Roe as evidence that the Supreme Court should not protect a woman’s right to choose. It would seem that conservatives believe rights should be abandoned if enough people complain about them.

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