I’ve mentioned earlier my belief that Bush has won and the Supreme Court will gut Roe v. Wade. Now “to gut” is a more subtle term than “to reverse” although it means the same thing in principle.

Here’s the latest on how they’re likely to gut it from Scott Lemieux of The American Prospect Online Edition.

While one woman forced to endure a greater risk to her health for an utterly silly law is too many, one might reasonably ask — given that the case will not be used to overturn Roe — how much it actually matters whether Stenberg is affirmed. Here’s the answer: Any of the legal rationales for upholding the law contain doctrinal time bombs that could seriously undermine reproductive rights in future cases.

If the Court overturns the health exemption, this will deal a body blow to Casey, giving states hostile to abortion much more leeway to legally harass doctors and patients in ways likely to have a chilling effect on abortion providers. (Remember that D&X abortions are not limited to post-viability abortions.) If the Court gives a free pass to legislatures that make bogus medical claims to evade the health exemption requirement, as the drafters of Federal Partial-Birth Abortion Act did, this will have the same effect with an extra layer of dishonesty added on top. (It will also send a signal to legislatures that the Court will not scrutinize the motives and consequences of abortion regulations with any seriousness, further diluting the “undue burden” restriction.) If, alternatively, the Court upholds the law pending “as applied” challenges, this will make challenges to abortion laws much more difficult and expensive, exacerbating the class inequities already present in abortion access.

And irrespective of the precise rationale the Court ends up citing, the larger problem is that, because the distinction between D&X abortions and any other procedure is wholly arbitrary, legislatures can invent further distinctions and continue to tie the hands of abortion doctors. As Eve Gartner, the lawyer representing Planned Parenthood, put it during the oral argument, “to allow such an expansion of pre-viability abortions that can be banned would set the stage for continued legislative efforts to ban other iterations of the classic D&E method of abortion, until truly there would be nothing left at all of Casey’s holding that it is unconstitutional to ban second-trimester abortions.”

Read the quote in context here.

Having been passionately pro-choice since roughly 1970 this is a bitterly disappointing prospect that the 110th, nor the 111th Congress’s will be unable to mitigate directly no matter how large the True Blue majority. (That die was cast in 2000.) The composition of the court can’t begin to change back in favor of our right to choose until Inauguration Day in January, 2009 at the very earliest!

Now, some influential Texans may believe that gender equality is impossible so long as humanity exists as a species. I believe that unplanned, unwanted pregnancy is an extraordinary obstacle to gender equality on a somewhat shorter timescale. And if the radical/authoritarian minority is in a position to steal our access to contingencies in the face of contraceptive failure (or failure to use contraceptives) then…

... well, then contraception is going to have to get a lot safer, more reliable, more accessible, more affordable, and more easily used correctly.

A couple of myths I’d like to tackle early on:

1) Upholding Casey merely kicks the question back to the individual states. It doesn’t. Instead it creates enough malicious medical malpractice vulnerabilities and other roadblocks that few insurers will want to cover it, few doctors will be willing to perform it, few med schools will be comfortable teaching it, and, therefore, even in states where abortion remains legal few women will have easy access to abortion services. Casey is a big, fat, hairy deal and it’s a case, and thus a right, that Americans are almost certainly going to lose.

2) Don’t bother developing male contraceptives because men aren’t interested. Plenty of us — possibly most — are. It’s just that right now our only meaningful alternatives are (in descending order of reported reliability) vasectomy, condoms, and abstinence. Give us something else between surgery and a barrier method invented in the 16th-Century and chances are we’ll jump on it.

3) No method of contraception is 100% effective, and people won’t always use them correctly, and some people won’t be able to get access to it, so why bother trying at all? Because gender inequality is at the heart of extraordinary, life-shortening, possibility-limiting misery for men, women, and children; because reproductive self-determination is a cornerstone of gender equality; and because we’re at extreme risk of losing the reliable fallback that’s allowed us to lump along with the shitty nostrums and contraptions we like to call modern contraceptive technology.

4) Contraception isn’t a big deal because most abortions are needed for people who can’t or don’t use contraception. Not at all true. Instead 90% of abortions are necessary because contraception failed.