photo by Steve Rhodes
Barring some development coming completely out of left field, Judge Brett Kavanaugh will be confirmed to sit on the Supreme Court – probably in time to be seated when the Court returns to action in October.
And if somehow Kavanaugh’s nomination fails, President Trump will simply select another nominee who is cut from the same jurisprudential cloth.
For supporters of access to abortion, this is a highly disturbing prospect. They presume Kavanaugh would give the court’s conservative faction a necessary fifth vote to overturn Roe v. Wade and Planned Parenthood v. Casey, the two seminal cases that affirm citizens’ right to terminate a pregnancy at certain times and under certain circumstances.
This might be true, but not necessarily. With four liberal justices firmly in Roe’s camp, it would take only one of the conservatives to join them – as retiring Justice Anthony Kennedy did in Planned Parenthood – to sustain the Roe precedent.
Roe and Planned Parenthood would not automatically be doomed even if the two older liberal justices, Ruth Bader Ginsburg and Stephen Breyer, departed and President Trump or another Republican president replaced them with conservative appointees. There is a conservative argument to be made for the right to an abortion. However, Democrats and allied groups have little interest in making that case right now, when they hope to use the issue to motivate their voters in November.
In any case, peaceful persuasion is not the go-to tool for many on the political left who are uninspired by the phrase “individual liberty.” While the abortion-rights camp calls itself “pro-choice” on reproductive matters, it tends to overlap a group that sees less merit in personal choice on matters of, say, health insurance.
But suppose worse comes to worst for abortion-rights proponents, and a solid conservative majority emerges on the high court in time to consider a case that puts Roe in play. If persuasion is the only weapon available for the battle, where will they start?
That answer is obvious. It will be with the doctrine of stare decisis, the legal principle that holds that the matter has been settled – correctly or otherwise. Conservative judges tend to give a fair amount of weight to this principle, although it is not binding. I noted recently that Chief Justice John Roberts, who is among the conservatives, elevated stare decisis in his dissent to the court’s overruling of Quill v. North Dakota. Roberts, at least, ought to be amenable to that argument in favor of retaining Roe and Planned Parenthood.
Then there is the First Amendment, which has seen little action in the abortion wars thus far. But the time may be at hand when it should play a bigger role. This is because, at the root of state regulation of abortion, is the question of when a state gains a valid interest in protecting either a human life or what has been called the potentiality of human life.
Under Roe, as modified by Planned Parenthood, a viable fetus – one capable of survival outside the womb – is not legally a person, but the state may protect its right to achieve independent life. We don’t need to change this principle to preserve Roe.
But what about a fetus in the third month of gestation, which cannot survive outside the womb? How about an embryo at one month? A small group of cells several days after conception? A single-celled, newly fertilized zygote?
Most of us have views, often strongly held, about whether the state should require someone to carry any of these to term. This question of when human life begins is a matter of ethical conviction, often though not always one informed by religious faith. It is no secret that various religious organizations have been highly vocal in the movement to severely restrict, if not outright eliminate, legal abortion. Though many of their opponents paint them as misogynists, these are for the most part highly earnest people – male and female – who are acting out of conscience.
Yet if a zygote is a protected potential human life, then what about the ovum and sperm that have not yet joined? Some of the faiths that vigorously oppose abortion also condemn any form of contraception. If a state can outlaw the abortion of a single-celled zygote, why can’t it outlaw vasectomies or tubal ligation? Why does that potential life only commence at fertilization?
A conservative jurist can recognize that this is a religious question. For the state to answer it, especially in the affirmative, is to endorse that particular religious belief. This is the First Amendment argument in favor of Roe. It is the same argument, ironically, that would protect a doctor from being compelled to provide an abortion if it is contrary to that physician’s moral code.
There are two separate lines of defense under the 14th Amendment. The one adopted under Roe is that a woman has a right to privacy, akin to the fundamental right to marriage, under the Due Process clause. This is the rationale most often ridiculed by legal scholars critical of Roe; the Constitution says nothing specifically about a right of privacy or of bodily integrity. But it says nothing about marriage, either – yet, in a progression of cases spanning more than a century, courts recognized marriage as one of the fundamental rights of a free citizen. Roe’s small jump was to say that people’s control of their own bodies, in the absence of some contrary and compelling state interest, is an equally fundamental right.
But there is another, more modern application of the 14th Amendment. In today’s world, legal abortion can never be banned entirely. Any pregnant person with the financial means to purchase a plane ticket to some jurisdiction where legal, medically safe abortion is available will have access to the procedure. For medical (as opposed to surgical) abortion, even a plane ticket won’t be necessary. Abortion will only require money.
All a state can do is obstruct a poor or abused woman from exercising similar control over whether a pregnancy moves forward or ends. This will be true no matter how Roe may be modified, or if Roe is flatly reversed.
After so many years of demonizing Roe’s critics and presumed antagonists on the bench, it is hard for the abortion-rights camp to conceive (no pun intended) that conservative jurists could be swayed by this equal protection argument. That may be wrong. A conservative justice might still be loath to reverse Roe knowing that his or her own relatives, and those with similar privilege, remain free to end a pregnancy, while others in harsher circumstances are not.
A conservative majority on the Supreme Court does not necessarily mean the end of legal access to abortion. Actually, for many people, it can’t and it won’t, no matter what the court decides. That fact more than anything else might be why Roe and the subsequent cases that affirm abortion rights will survive. But if we have a conservative court, someone will have to make a conservative case for this result.