Roe v. Wade Can Fall—Here’s How

The pro-life movement in America is younger, stronger and more sophisticated than anywhere on the planet.

We know how to write legislation and how to get it passed at every level of government. We can bury Capitol Hill in postcards and shut down phone lines. We have learned how to identify and encourage pro-life candidates and keep them accountable.

We have become experts in adoption law and in real estate, opening thousands of pregnancy help centers, often right next door to the local abortion center. We have honed our media skills and even become investigative journalists, going undercover to expose the hideous realities behind that anodyne word choice.

But there is one legal obstacle we have yet to overcome, and that is the Supreme Court.

With the election of President Donald Trump and the confirmation of his two Supreme Court nominees, we are closer than ever to overcoming that obstacle.

“A RAW EXERCISE OF POWER”

The U.S. Constitution does not mention abortion, so abortion policymaking is left to the people, through the democratic process. At least that’s how it worked until 1973, when the Supreme Court took it from us, with dubious constitutional warrant, in what Justice Byron White called a “raw exercise of power.”

For nearly 50 years, the people have been disenfranchised on the most important social issue of our time, and the consequences have been catastrophic. Without any meaningful legal protection for women and their unborn children, 60 million babies in America have died.

IS A 5-4 COURT ENOUGH?

For more than four decades, the Supreme Court has been peopled by justices who see themselves as the voice and conscience of contemporary society. Forcing legalized abortion on the nation through judicial fiat fits well within this expansive view.

In contrast are justices who see their role as interpreting an instrument framed by the people in a detached and objective way, like umpires calling balls and strikes. This is the vision of the Founding Fathers, and why Alexander Hamilton called the judiciary the “least dangerous branch.”

Justices Neil Gorsuch and Brett Kavanaugh adhere to the latter view. Gorsuch joined the court after Justice Antonin Scalia’s death, and Kavanaugh followed the departure of Justice Anthony Kennedy. Kennedy was the perennial swing vote, but on hot-button social issues, instead of playing the role of a fair umpire, he too often picked up the bat and swung. Justice Kennedy ushered in nationalized same-sex marriage, and it was Kennedy who saved Roe when it was seriously challenged in 1992.

Justice Kavanaugh arguably brings the court into a 5-4 conservative majority, but is 5-4 enough to overturn Roe?

Legal scholar James Bopp notes that overturning precedent is a process, and one that rarely occurs immediately following confirmation of a new justice.

Several years ago at a legal conference in Washington, D.C., a former Supreme Court clerk made an interesting observation. It was the general opinion among Supreme Court insiders, he said, that a 5-4 court would not be inclined to do something so controversial as overturning Roe v. Wade.

It’s not as if 5-4 courts never do anything controversial. Just a few years ago a 5-4 court imposed same-sex marriage on the nation. But Roe was 7-2, and a margin of 7-2 or at least 6-3 might be necessary to undo Roe.

Chief Justice Roberts is now seen as the swing vote, and his apparent concern for the “credibility” of the court could make him a particularly reluctant fifth vote against Roe. Recall that it was the vote of the chief justice that saved the Affordable Care Act from being declared unconstitutional. Some interpret that vote as an effort to avoid a political crisis for the court. It’s not hard to imagine another crisis-avoiding vote in the future.

President Trump has vowed to continue nominating judicial “umpires” if he has future opportunities. Odds are good that he will. By the end of Trump’s first term, two of the current justices will be over 80 years old. If Trump has a second term, that number rises to three, one of whom will be in her 90s.

BUT IT’S PRECEDENT!

Even if a majority of justices believe that Roe v. Wade was wrongly decided, there is still the matter of precedent.

Under the doctrine of stare decisis (Latin for “to stand by things decided”), the court will follow its prior rulings in later cases with similar facts. But not always.

In more than 230 cases, the court has found good reason to overturn precedent. One of the most vivid examples is when Brown v. Board of Education (1954) overturned Plessy v. Ferguson (separate-but-equal) after 58 years, leading to school desegregation.

Yes, the court will consider whether a decision was wrongly decided, but there are other prudential considerations, such as whether the decision is “settled.”

How “settled” is Roe v. Wade? There are few things so unsettled in American life as the question of abortion. But it may surprise you to learn that it is also unsettled in the courts.

Americans United for Life Senior Counsel Clarke Forsythe makes the case in a well-researched essay entitled “A Draft Opinion Overruling Roe v. Wade” (published in the Georgetown Journal of Law and Public Policy).

For starters, two of the justices who originally joined the Roe majority “subsequently recanted in whole or in part.” But the confusion continues from there.

The court can’t seem to decide whether or not the abortion right is “fundamental” (some decisions say it is, others don’t), or what the constitutional foundation ought to be (it has shifted over time), or which legal test should be used to measure state abortion laws (the test has changed many times).

Roe v. Wade is the very definition of shifting sands, and certainly not the rock its defenders portray it to be.

IN THE COURTS NOW

Overturning precedent usually happens over time. A prior decision is questioned, distinguished and weakened before ultimately being overturned.

An argument can be made that, in the case of Roe, the process is well underway.

There are more than a dozen state abortion law cases pending in federal courts. One or more could eventually make it to the Supreme Court for review. Each is a challenge to the patchwork of decisions that we call Roe.

The key element, Bopp reminds us, is a “willing court.”

Cases under review involve prohibitions on second-trimester dismemberment abortions and abortions based on sex or race. They involve health and safety mandates, like requiring abortionists to have hospital admitting privileges, to perform an ultrasound, or to provide an 18-hour waiting period. Other cases impose limitations on the taxpayer funding of abortions under state Medicaid programs.

Another important pro-life measure that could find its way to the Supreme Court is the prohibition of abortion after an unborn child can feel pain, at around 20 weeks’ gestation. Like the dismemberment ban and partial-birth abortion ban before it, this law exposes the brutality of abortion and moves the public to greater respect for life.

CONCLUSION

Will the Supreme Court be able to correct the anti-democratic, anti-constitutional Roe v. Wade? We have reason to be cautiously optimistic that it will; if not now, then soon.

It is important to remember that overruling Roe will not make abortion illegal. Only a few state abortion restrictions would come back into effect immediately.

Steve Aden, general counsel for Americans United for Life, predicts that after Roe, abortion will remain mostly legal in a third of the states, mostly illegal in another third, and will be the subject of intense debate in the rest. That would be tremendous progress, and a great framework to build on.

Forty-five years is a long time. But Americans can have real hope that, in our lifetime, we will once again have a real voice, and a vote, on abortion. ©2018 Cathy Ruse

 

Cathy Ruse is an attorney and senior legal fellow at the Washington, D.C.-based Family Research Council.