Updated at 10:35 p.m. ET on September 2, 2021
Last night, the Supreme Court quietly green-lit the most extreme abortion ban the United States has seen in half a century: a Texas law that prohibits abortions at six weeks from a woman’s last period, even in cases of rape or incest, and that deputizes citizens to spy on women and sue anyone who helps someone obtain a prohibited abortion.
The rest of the states now have a road map to ban abortion almost entirely and put bounties on women and doctors without court intervention. The constitutional right to abortion until viability is no longer being enforced. Republicans have been looking forward to this moment for decades. But some have mysteriously gone quiet. Even the loudest of the anti-abortion senators, Ted Cruz, who happens to hail from Texas, had managed, as of this writing, to refrain from gloating about the victory on Twitter.
[Mary Ziegler: The deviousness of Texas’s new abortion law]
Perhaps they don’t want the big headlines, because overturning Roe v. Wade is consistently unpopular with American voters. But another motivation could explain the silence: For half a decade, Republicans—especially self-described moderate members of the party—have been gaslighting America on the issue of abortion rights, pretending they didn’t know that Donald Trump’s Supreme Court picks were always planning to overturn Roe. A central goal of the conservative judicial movement that these justices came out of is overturning Roe. The Federalist Society handpicked them for that reason. It’s a transparently phony act, one that’s now been exposed as such.
Senator Susan Collins of Maine, for example, tried to convince everyone that she genuinely believed Brett Kavanaugh would let Roe stand, despite all evidence to the contrary. “Protecting [the right to an abortion] is important to me,” Collins told The New York Times after a two-hour, face-to-face session with Kavanaugh during which, she said, he convinced her that he would not overturn Roe. “His views on honoring precedent would preclude attempts to do by stealth that which one has committed not to do overtly.” Collins said that Kavanaugh assured her Roe was “settled law,” and that his answer on Roe was “very strong,” though he had openly criticized the decision in a speech, used the anti-abortion lingo “abortion on demand,” and voted more than once as a federal judge against reproductive rights.
Senator Lindsey Graham of South Carolina, an outspoken abortion opponent, also said on Fox News before Kavanaugh’s confirmation that the justice “will give great deference to Roe v. Wade.” Women, in particular, protested loudly about Kavanaugh’s nomination—less than a third of them supported it—not only because he clearly threatened Roe, but also because he had been credibly accused of attempted rape. Senator Ben Sasse of Nebraska, a Republican, in turn called women hysterical for sounding the alarm about Roe.
[Read: Trump, Kavanaugh, and the limits of male power]
“People are going to pretend that Americans have no historical memory, and supposedly there haven’t been screaming protesters saying ‘Women are going to die’ at every hearing for decades,” Sasse told Kavanaugh at his confirmation hearing. “So the fact that the hysteria has nothing to do with you means that we should ask: What’s the hysteria coming from?”
Kavanaugh was then confirmed, tipping the Supreme Court toward an anti-abortion majority.
The same charade repeated itself when Trump nominated Amy Coney Barrett, a religious conservative and formerly outspoken abortion opponent, to replace the liberal lion Ruth Bader Ginsburg. Barrett very carefully answered a question about Roe during her confirmation hearings. “All nominees are united in their belief that what they think about a precedent should not bear on how they decide cases,” she told senators.
Senator Lisa Murkowski of Alaska, a supposed pro-abortion-rights moderate Republican in the same vein as Collins, told reporters that she did not believe Barrett would ever overturn Roe. She voted to confirm Barrett in the middle of Trump’s reelection campaign. And then Trump himself—despite having promised in 2016 to nominate only anti-abortion judges—flatly denied in a debate with then-candidate Joe Biden that Roe was on the ballot.
“You don’t know what’s on the ballot. Why is it on the ballot?” Trump asked Biden in an exchange about Roe.
“It’s on the ballot in the Court,” Biden said, to which Trump replied, “You don’t know [Barrett’s] view on Roe v. Wade.”
Of course, now that Chief Justice John Roberts has sided with the liberal justices on the Texas case, it’s clear that Kavanaugh and Barrett were the votes that effectively ended abortion rights for women in Texas. That was always the plan. It was exactly why they were chosen. Women weren’t being “hysterical” about the threat to Roe—Republicans were simply lying about it. And now they hope we won’t notice.
An earlier version of this article said that women who obtain abortions could be sued under the new law. In fact, only people suspected of performing illegal abortions or helping someone obtain one are subject to lawsuits under the law. This article originally stated that Senator Susan Collins voted to confirm Justice Amy Coney Barrett. In fact, Collins opposed Barrett's confirmation.
