Commentary: New Kentucky bill to ban abortion is unconstitutional, but Trump could tip the balance

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Back in March, I wrote that, “No matter how much they hate abortion, Bevin and his anti-choice allies simply cannot ban it, either outright or through unnecessary regulation.”

That was in response to Gov. Matt Bevin’s attempt to shut down Kentucky’s last remaining abortion clinic, the EMW Surgical Center, and the General Assembly’s attempt to impose medically unnecessary hurdles in the paths of women trying to exercise their right to make their own health care decisions.

Two other times in the past year and a half I have written to warn Kentucky lawmakers about the futility of new abortion restrictions and the inevitability of losing court battles that needlessly cost our great Commonwealth thousands if not millions of dollars in legal fees. Sure enough, the courts have already begun rolling back the expensive overreach of our legislators.

Even though they continue to lose in court, however, would-be theocrats in our state government remain undaunted. This week, notorious state representative Dan Johnson, a bishop with Heart of Fire Ministries in Bullitt County, has pre-filed a bill that would totally ban abortion in the state of Kentucky. Not slowly return it to the back alleys through excessive red tape, but completely ban the practice except in cases where the woman’s life would be jeopardized by delivery.

Without belaboring the point, this bill is a legal dead letter. It is blatantly unconstitutional. Infuriating as that may be for all who believe women should lose all agency during pregnancy and be relegated to nothing more than government-controlled incubators, the central holding of Roe v. Wade is still viable constitutional law, and no conservative Supreme Court justices have been able to fully overturn it despite 45 years of trying.

As recently as last year, the Supreme Court struck down a regulatory scheme in Texas designed to close as many abortion clinics as possible by imposing superfluous rules upon them. In Whole Women’s Health v. Hellerstedt, the justices voted 5-3 against Texas, reaffirming the prevailing “undue burden” test that has been the bane of many abortion restrictions since it was adopted in the case of Planned Parenthood v. Casey in 1992.

Even if Justice Antonin Scalia had not died a few months before the Hellerstedt decision, the Court still would have struck down the Texas law. The addition of ultra-conservative Justice Neill Gorsuch, recently in Louisville and Lexington on a speaking tour organized by his patron, Senator Mitch McConnell, would have not shifted the balance at the time.

But the balance could be shifted soon. Two members of the Hellerstedt majority, Justices Anthony Kennedy and Ruth Bader Ginsburg, are over 80 years old. Justice Stephen Breyer, who wrote the court’s Hellerstedt opinion, just turned 79. All three are believed to be in good health, but rumors that Kennedy was planning to retire circulated as recently as late June.

If President Donald Trump was given the opportunity, through either death or departure, to replace one or more of these three Justices, the precarious majority in support of female autonomy could be gone. Granted, rumors of Roe’s death have been greatly exaggerated in the past. In 1992, when the Court was still considering the case of Casey, the ideological tilt of the justices was firmly conservative. But a collaborative opinion by three Republican appointees (Justices Kennedy, Sandra Day O’Connor and David Souter) sided with legal stability and kept the basic holding of Roe alive.

It would probably take the appointment of two very extreme ideological authoritarians to the Court for the full overturn of Roe and Casey to happen. But with Trump in the White House, the advanced age of certain sitting justices, and Gorsuch as an example of the kind of legal mind Trump prefers, that possibility is becoming more realistic by the day.

It is easy to dismiss bills like Johnson’s as mere meat for his ravenous base, whose unceasing fire for theocracy is fueled by legislative gestures, even those that are doomed to eventual legal defeat. If nothing else, they stoke distrust and resentment for the courts, negative sentiments other conservative politicians can then exploit to expand their own power. It’s quite the game.

But with the GOP in control of the White House, both branches of Congress, both branches of the Kentucky General Assembly, and the Kentucky governor’s office, conservative lawyers and lobbyists in the background continue to play the long game, persistently probing and prodding a legal framework that may be more precarious than supporters of liberty and autonomy would prefer.

Hopefully, Johnson’s unconstitutional bill never makes it out of committee. But if it does, and the General Assembly – against the rights of women and the advice of good lawyers who know how precedent works – passes such an egregious overstep, opponents should not become complacent in their own faith that the courts will always make the right decision. Elections still matter.