WASHINGTON – These wombs had a great view.
Uteruses of all sizes and colors paraded in front the Supreme Court during Wednesday morning’s arguments in the largest abortion case in a quarter-century.
There, facing the marble temple, were a large cardboard cutout of a uterus, a uterus painted on a banner with the Statue of Liberty on it, a uterus drawn with a mouth and lips, a two-foot uterus poster labeled “MINE” and a flag painted with a uterus and the words “Come and Take It.”
Handmade signs proclaimed “Don’t Booby Trap My Uterus,” “Uteruses before duderuses,” “No Uterus, No Opinion,” and “My Uterus is Not Public Property.” Somebody drew a uterus where the snake goes on the “Don’t Tread on Me” flag, and another woman captioned her uterus with the words “What’s Mine is Not Yours.”
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The abundance of reproductive organs outside the court was a vivid reminder that Senate Republicans have birthed a whole new round of trouble for the Supreme Court. The once-hallowed court is already setting new lows in public confidence, and the court is about to become more politicized than ever.
After Justice Antonin Scalia’s death, the Senate majority declared that no replacement nominated by President Obama will be considered. This paralyzes the court for a year and – worse – essentially requires that the next justice be popularly elected in the presidential race. “Let the people decide” is how Mitch McConnell, the Senate GOP leader, puts it.
If Wednesday’s argument was an indication, the Republicans appeared to have fired up the other side more than their own with this revival of the culture wars. About 80 percent of the few thousand people braving the cold and wind outside the court were abortion-rights supporters. Inside the courtroom, the liberal justices, who are now in a 4-to-4 tie with the conservatives, were unusually feisty as they considered abortion restrictions in Texas that cut the number of clinics nearly in half and the abortion capacity by about 80 percent.
They repeatedly noted the absurdity that procedures such as liposuction and colonoscopies, which are riskier than abortion, are not subject to the same requirements in Texas. They observed that under the law, 750,000 Texas women will live more than 200 miles from a clinic; before, only 10,000 did.
Justice Samuel Alito, most aggressive among the conservative justices in Scalia’s absence, tried to make the case that “there is very little specific evidence” about why clinics have closed since the law took effect, and he asserted that the closures may be “due to other factors.”
Justice Elena Kagan swatted that argument down by noting that on the very day one of the requirements took effect (requiring abortion doctors to have admitting privileges at a local hospital), 11 clinics shut down. And when the other requirement (requiring clinics to meet all requirements of surgical centers) took effect, over a dozen facilities closed, reopening when a lower court stayed the provision. “It’s almost like the perfect controlled experiment,” she said.
But the details didn’t particularly matter. There are four justices for abortion rights, three opposed, and Justice Anthony Kennedy in the middle, asking whether it might be “helpful for this court to remand for further findings” by lower courts – essentially punting the matter.
Punting this, and most everything else, might indeed be helpful to this court, now so polarized that arguments sound more like congressional debates or cable news shows. Underscoring the politicization, 163 members of Congress filed a brief on one side of the abortion case, and 174 on the other side.
Americans’ trust and confidence in the court, as high as 56 percent in the late 1980s, is down to 32 percent, according to Gallup. Disapproval of the court has jumped 21 points since 2000. With Senate Republicans now determined to have the ninth justice essentially elected by the people, the traditional incantation before each session – “God save the United States and this honorable court” – has never seemed more urgent.
Putting the court’s composition to a popular referendum will, inevitably, bring the atmosphere inside the court ever closer to the coarse displays outside. Abortion rights activists, wearing purple scarves and hats, carried messages Wednesday proclaiming “Think Outside My Box” and “Not Every Ejaculation Needs a Name.” Abortion foes carried blue balloons and held aloft the usual images of bloody fetuses.
Above them, the American flag flew at half-staff for Scalia – but it might as well be for the high court’s dignity.
Follow Dana Milbank on Twitter @Milbank.