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The Future of Roe

By Dr. Prudence Flowers – Flinders University

 

On 27 June 2018, Justice Anthony Kennedy made the shock announcement that he was retiring from the US Supreme Court. The departure of Kennedy, a crucial swing vote on reproductive rights, means that the future of legal abortion once again hangs in the balance. This precarious state is the product of decades of right-to-life activism, coupled with the conservative reorientation of the Republican Party in the late twentieth century.

On 22 January 1973, the Supreme Court legalized all first trimester and many second trimester abortions through its rulings in Roe v. Wade and Doe v. Bolton. These decisions galvanized a national anti-abortion movement committed to ending legal abortion. In the 1970s, the movement was focused on adding a Human Life Amendment to the US Constitution, but this was roundly defeated in the Senate in 1983. Since then, the political arm of the movement has focused on a judicial strategy that works to erode and eventually overturn Roe. Groups such as the National Right to Life Committee (NRLC) and Americans United for Life (AUL) engage in extensive lobbying and litigation, frequently at the state level, to bring test legislation before the courts. This judicial strategy has been facilitated by the alliance between anti-abortionists and the Republican Party, which pledges to appoint judges who respect “the sanctity of innocent human life” and “the rule of law expressed within the Constitution.”[1] In the late 1980s and early 1990s, right-to-life efforts seemed like they were about to bear fruit. However, in Planned Parenthood v. Casey (1992), the Supreme Court ruled 5-4 to uphold the legal right to abortion. This narrow majority was facilitated by Justices Sandra Day O’Connor, David Souter, and Kennedy, a triumvirate of Reagan-Bush appointees.

With Kennedy’s departure, the balance of power on the bench now seems to favour constitutional originalists and opponents of Roe. However, in contrast to the 1980s, there has been little preparatory groundwork to ascertain how the Supreme Court might rule. Most anti-abortion groups work hard to avoid direct failure and defeat, often preferring to follow the lead of politicians and judges. As James Bopp of the NRLC explained in 2013, “When you have a willing court, then you pursue what they’re willing to do.”[2] In the short term, opponents of abortion are likely to bring a spate of test cases to ascertain just how far the Supreme Court will go in revisiting the central tenets of Roe.

The post-Kennedy Supreme Court will almost certainly embrace a much broader interpretation of whether a state is imposing an “undue burden” on women seeking abortion. National right-to-life groups explicitly pursue an incrementalist strategy that chips away at abortion rights and access, which has been particularly successful since the 2010 midterms. As Don McConchie of AUL explains, just because states cannot ban abortion “does not meant there’s a constitutional right to abortion being convenient.”[3] In Texas, a law requiring abortion clinics to have hospital admitting privileges more than halved the number of clinics able to provide abortion services. The Supreme Court ruled 6-3 in Whole Woman’s Health v. Hellerstedt (2016) that this was unconstitutional. Such a decision now seems highly unlikely.

Recently, right-to-lifers have advocated laws banning abortion after a set point in pregnancy. Between 2010 and 2017, 16 states banned abortion after 20 weeks gestation. Between 2013 and 2018, 3 states banned abortion after an ultrasound can detect a fetal heartbeat, generally 6-8 weeks gestation. If the Supreme Court rules that states are permitted to ban abortion at 20 weeks this will overturn the fetal viability threshold that has been one of the long-standing findings of Roe. If states are allowed to impose the fetal heartbeat cut-off, the vast majority of abortions would be illegal.

The Supreme Court might also directly consider the constitutionality of Roe. Right-to-lifers make two core arguments about why Roe (and Casey) are “bad law,” one centred on privacy and one on personhood. These arguments have quite different implications.

Anti-abortionists, like constitutional originalists, believe that the right to privacy was created by an activist judiciary. Privacy rights are not specifically enumerated in the US Constitution and were first outlined in Griswold v. Connecticut (1965). The right to privacy is a foundational element of Roe, and AUL has argued that if the right to privacy does not exist, “the state would be free to regulate and prohibit abortion to the extent it chose to do so.”[4] Groups such as the NRLC and AUL frequently suggest that Roe is as a problem because it circumvented the democratic process. The NRLC describes it as a “lawless decision that snatched authority away from the American people.”[5] This framing is disingenuous; right-to-lifers view abortion as murder and in the 1970s and 1980s, many groups rejected legislative approaches that would have returned the matter to the states.

If Roe is overturned on privacy grounds, the nation will have a patchwork of different laws, as was the case before 1973. According to a 2018 Guttmacher Institute’s survey, 4 states currently have “trigger laws” that immediately ban abortion if Roe is overturned, 10 states have pre-Roe anti-abortion legislation on the books, and 7 states would move to significantly limit abortion rights. Only 9 states have laws that protect the right to abortion.[6] American women would still be able to access abortion, but this would be contingent on finances and geography. Right-to-lifers would rejoice that Roe was overturned, but if abortion is still accessible in some states they would not view their job as being done.

If Roe is reconsidered on personhood grounds, it would have immediate and sweeping consequences for reproductive rights. In 1973, the Supreme Court explicitly rejected the idea that the fetus was a person with rights protected by the 14th Amendment of the US Constitution.[7] Anti-abortionists disagree, viewing “constitutional personhood” for fetuses as the “highest expression of prolife principle.”[8] It is notable that Justice Neil Gorsuch has ruminated on the meanings of personhood and the 14th Amendment. Overturning Roe on broad personhood grounds would immediately end all (or almost all) abortions nationwide, but it would also have consequences for reproductive technologies such as IVF. Depending on the framing, it could also impact popular forms of contraception such as the oral contraceptive pill and the IUD.

Legal abortion has broad and relatively stable public support in the United States. In 1992, PEW polling showed 60% of Americans did not want to see Roe overturned; in December 2016 that number stood at 69%. In July 2017, 57% of people polled believed abortion should be legal in all or most cases.[9] Although abortion remains controversial and contested, it is also relatively common; current stats indicate 23.7% of American women will have an abortion over the course of their reproductive life.[10]

It has been 45 years since the court first decided Roe and 26 years since Casey reaffirmed the legal right to abortion. Nevertheless, ongoing political polarization over abortion has created a Supreme Court sharply divided on the significance of legal precedent and on the constitution itself. In the short term, it seems almost inevitable that Roe will be significantly eroded. Only time will tell whether Donald Trump will be the President that fulfils a promise that Republicans have been making for decades: to end legal abortion in the United States.

 


 

[1] Republican Party Platform of 1980, http://www.presidency.ucsb.edu/ws/?pid=25844; Republican Platform of 2016 https://prod-cdn-static.gop.com/media/documents/DRAFT_12_FINAL%5B1%5D-ben_1468872234.pdf

[2] Bopp quoted in Irin Carmon, “The right’s plan to reverse Roe: Ban abortions to ‘protect’ women,’ MSNBC, 5 August 2013.

[3] McConchie quoted in Olga Khazan, “Planning the End of Abortion,” The Atlantic, 16 July 2015.

[4] Victor Rosenblum and Thomas Marzen, “Strategies for Reversing Roe v. Wade through the Courts,” in Dennis Horan, Edward Grant, and Paige Cuningham (eds), Abortion and the Constitution: Reversing Roe v. Wade Through the Courts (Washington, D.C.: Georgetown University Press, 1987), 202.

[5] Paul Stark, “Four huge myths about overturning Roe v. Wade, National Right to Life News (July 2018), 41.

[6] Guttmacher Institution, “Abortion Policy in the Absence of Roe,” August 2018, https://www.guttmacher.org/state-policy/explore/abortion-policy-absence-roe

[7] Roe v. Wade, 410 US 113 (1973).

[8] Victor Rosenblum and Thomas Marzen, “Strategies for Reversing Roe v. Wade through the Courts,” in Dennis Horan, Edward Grant, and Paige Cuningham (eds), Abortion and the Constitution: Reversing Roe v. Wade Through the Courts (Washington, D.C.: Georgetown University Press, 1987), 209.

[9] Hannah Fingerhut, “About seven-in-ten Americans oppose overturning Roe v. Wade,” PEW Research, 3 January 2017, http://www.pewresearch.org/fact-tank/2017/01/03/about-seven-in-ten-americans-oppose-overturning-roe-v-wade/; PEW Research Centre, “Public Opinion on Abortion” factsheet, 7 July 2017, http://www.pewforum.org/fact-sheet/public-opinion-on-abortion/

[10] Guttmacher Institute, “Abortion is a Common Experience for U.S. Women, Despite Dramatic Declines in Rates, 19 October 2017, https://www.guttmacher.org/news-release/2017/abortion-common-experience-us-women-despite-dramatic-declines-rates

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