Hill writes: "America is facing a full-frontal attack on Roe v Wade. There is no guarantee that the supreme court will protect the right to terminate a pregnancy."
'If Justice Ruth Bader Ginsburg, who is 86, decides to step down or if Trump wins a second term, all bets are off.' (photo: UPI/Barcroft)
15 May 19
America is facing a full-frontal attack on Roe v Wade. There is no guarantee that the supreme court will protect the right to terminate a pregnancy
n Tuesday night, the Republican-controlled state senate in Alabama voted to effectively ban abortion at every stage of a pregnancy, including in cases of rape or incest. The legislation would ensure that doctors who perform abortions could face up to 99 years in prison.
The measure is just the latest in a spate of anti-choice legislation that has recently been passed in the United States. Last week, Georgia became the fourth state to pass a so-called “heartbeat” abortion ban in 2019. (Two other states – Iowa and North Dakota – passed similar laws in prior years.) These laws – the Center for Reproductive Rights calls them “bafflingly” unconstitutional – are designed to be full-frontal attacks on Roe v Wade, the landmark 1973 US supreme court case recognizing the fundamental constitutional right to terminate a pregnancy.
Rather than pursuing the sort of incremental strategy that anti-abortion activists have favored in the past – such as banning abortions late in pregnancy, or attempting to gradually regulate abortion clinics out of existence with increasingly burdensome regulations – these newer laws are written to prohibit virtually all abortions in the state.
Fetal cardiac activity can be detected beginning at about six weeks of pregnancy, before many women know they’re pregnant. By banning all abortions after that point, “heartbeat” bans, if they take effect, would stop all but a very small percentage of abortions.
In every instance, however, courts have blocked those bans before they went into effect. Abortion remains legal in all 50 states, because advocates have sued to stop these measures, and courts have recognized that the laws are clearly – blatantly, unequivocally – unconstitutional.
In fact, that’s the point. The laws were designed to be a vehicle for states to challenge Roe v Wade and eliminate the constitutional right to abortion. In my home state, Governor Mike DeWine recognized that Ohio’s heartbeat bill was unconstitutional, explaining that the state was seeking “modification or reversal of existing legal precedents” – namely, Roe.
Nonetheless, these laws put pro-choice advocates in a dilemma. They have no choice but to sue if they want to protect abortion access, even early in abortion. And they are likely to win, at least initially. But anti-abortion lawyers will continue to press their cases on appeal and hope to end up before a US supreme court friendly to their cause, with the result that Roe v Wade is overruled.
Is this a realistic possibility? All signs point to “yes.”
Since Justice Anthony Kennedy retired last year and was replaced by Brett Kavanaugh, the five-justice majority on the US supreme court has unquestionably disagreed with Roe v Wade. Kennedy was one of the justices who voted to preserve Roe the last time it faced a serious challenge – in the 1992 case Planned Parenthood v Casey – and remained a reliable (if tepid) vote in favor of Roe’s core guarantee until his retirement. Four other justices – Chief Justice John Roberts, Clarence Thomas, Samuel Alito, and Neil Gorsuch – have all espoused positions hostile to women’s reproductive rights.
Kavanaugh, too, has expressed public skepticism about Roe as precedent, recently disagreeing vehemently with the decision of his supreme court colleagues to allow abortion clinics in Louisiana to remain open while the court decides whether to hear their case challenging a law that would shut them down.
Indeed, it wouldn’t even take a “heartbeat” case for Roe v Wade to be overturned. Several cases are now in the courts of appeals that could present an opportunity to overrule Roe. The court may decide to take the case involving the Louisiana clinics. Indiana has asked it to hear a case on whether the state can ban abortions sought for fetal anomalies. In either event, the court could decide it is no longer bound by Roe and enact a new standard for abortion restrictions.
It could say, for example, that states can decide for themselves whether to ban abortion. This would radically change the legal landscape almost overnight, as blue states would act to protect abortion access, while red states would act to further restrict or prohibit abortion altogether.
Then again, this outcome is not inevitable. First, although Roberts has shown himself to be no friend of Roe – he voted against abortion clinics in the 2016 case of Whole Woman’s Health v Hellerstedt – he is also known to be concerned about his legacy and about avoiding politicization of the courts. He famously rebuked Donald Trump for criticizing an “Obama judge”, saying, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
Second, the supreme court gets to choose which cases it hears. It is not required to take any of the cases currently in the pipeline; it can simply let lower courts’ decisions stand, without explanation or justification. To avoid the appearance that the court is a political body whose decisions are driven by changes in personnel rather than legal principle, it might just let stand all lower-court decisions striking down the “heartbeat” bans. If that’s the case, then anti-abortion advocates will have overplayed their hand.
They will have tried to push the supreme court to decide their case too early, and by doing so, reduced their chances of winning.
Still, there is plenty of reason for concern for those who want to preserve Roe. The supreme court has taken a relatively lax attitude toward respecting long-standing precedents, including overturning a 40-year-old precedent just this week. And if anti-abortion activists fail this time, they can always try again. If Ruth Bader Ginsburg, who is 86, decides to step down or if Trump wins a second term, all bets are off.
The only thing that’s certain is that the future of Roe is uncertain at best.
