No one used to take Janet Porter seriously. The Ohio activist who pioneered so-called “heartbeat” six-week abortion bans was mostly known for the gags — a YouTube video with a tinny voice singing “Have a heart, don’t let them kill / Help us pass the heartbeat bill” sung to the tune of “99 Red Balloons,” or having two fetuses “testify” via ultrasound at a committee hearing. Radical as her goals were, she didn’t seem in danger of having them come true, since mainstream anti-abortion activists and elected officials long believed in going slowly to forestall political and legal backlash.
As Ohio Right to Life president Mike Gonidakis, who convinced John Kasich to veto Ohio’s heartbeat bill in 2016, put it to me then, “When you overreach, you lose. The courts can be very vicious to you.” Establishment anti-choicers also worry about waking up voters who think of abortion rights as basically secure, and prefer chipping away at Roe v. Wade, using tendentious and inaccurate phrases like “taxpayer-funded abortion” and “fetal pain,” and falsely comparing later abortions to “infanticide.” The anti-choice split is about speed, not goals. “If the court was 7-2 pro-life I would say, let’s do a ban at conception,” Gonidakis said. “I know everyone is swept up in Trump mania, but we have to be realistic.”
But just because that’s been abortion’s past doesn’t mean Porter is wrong about its future. Kasich is gone, and so is Justice Anthony Kennedy. Heartbeat bans are suddenly in place, if not in effect, in Ohio, Georgia, Mississippi, and Kentucky. On Monday, the normally plodding and passionless Justice Stephen Breyer issued a Cassandra-like warning in a dissent joined by the other liberal justices, calling the majority’s overruling of a states’ rights precedent “dangerous” and adding ominously, “Today’s decision can only cause one to wonder which cases the Court will overrule next.” If that wasn’t clear enough, he twice mentioned the court’s major abortion precedent when he didn’t have to. Only running down the court steps shrieking would have been less subtle.
The legal scholar Jack Balkin has used the phrase “off the wall,” or on it, to describe how social movements can convince people the Constitution says what they want it to say. Their goals are first ignored or seen as “lunatic,” he observed, then “wrong but interesting,” then “plausible but wrong,” until, through a combination of forces, they get to being considered “probably right.” And when it comes to abortion and a changing Supreme Court, we have no idea what will be on the wall.
Heartbeat bills have never been on the wall. For nearly a half century, the Supreme Court has said that states can’t ban abortion before a fetus is viable — no earlier than 24 weeks, not six, before many women even know they’re pregnant. That’s why the focus-grouped, gray-suited architects of the anti-abortion movement believe total bans hurt their cause. They’ve read the polls that say Americans broadly support abortion in the first trimester, that they don’t want to see Roe v. Wade overturned, and that they squirm when they hear about the later abortions allowed under it: after 20 weeks, or later for reason of health or life.
“Legislation is often a process, not an event. It takes time,” the National Right to Life Committee’s James Bopp — the architect of Citizens United, and an opponent of heartbeat bills to this day— once told me. What’s off the wall might not stay there, Balkin has pointed out, and it “depends a great deal on who is willing to put their reputation and authority behind the arguments and stand up for them. If enough important and influential people say that a legal argument is not crazy but one on which reasonable minds can differ — or even the best legal argument, all things considered — then it becomes on-the-wall, although it is by no means guaranteed to succeed ultimately in the courts.”
Janet Porter intuitively understands that. She has pointed out that in 2000, the Supreme Court struck down a “partial birth abortion ban.” Then Samuel Alito replaced Sandra Day O’Connor, and in 2007, the Republican appointees on the Supreme Court pretended it wasn’t overturning a precedent when it upheld the federal version. Back on the wall.
Kennedy’s successor, Brett Kavanaugh, has already made it clear in a Louisiana procedural vote that he’s willing to throw out abortion precedent in radical fashion as long as he can sound slightly calmer than he did in his confirmation hearings. Chief Justice John Roberts, the court’s new swing vote, is no one’s idea of a moderate and, despite voting to keep Louisiana’s clinics temporarily open in a procedural move, has upheld every single abortion law that the court has considered in full. But he has tended to not want to harm the Republican Party’s chances at the ballot, which upholding a total ban might do.
Breyer’s distress might also tell us something about an abortion mystery at the court. Last Friday, the justices considered for the 13th time whether to hear an Indiana abortion restriction that bans abortions in case of a fetal disability and mandates fetal burial or cremations. This was not a close call for the vast majority of judges who threw it out or refused to rehear it, because in the words of one of them, the law “seeks to accomplish precisely what the Supreme Court has held is impermissible,” by banning abortion before viability. So why not send Indiana packing, unless there’s a chance that could change?
For now, Janet Porter has to be feeling pretty good about where she is. Once no state had a heartbeat bill; now they’re multiplying. She was a birther; now, so is the president of the United States. She enlisted conservative attorney Jay Sekulow to work out the legal details of what she wanted to get done; so did Trump. According to the Guardian, “In late 2017, she delivered her message directly to Mike Pence, and has been invited back to the White House for an anti-abortion gathering since.”
We don’t know how judges will read those cues, and neither do the people making laws. “When you have a willing court,” Bopp said, “then you pursue what they’re willing to do.” That was six years ago, and the walls have been coming down ever since.
