Realism about the Supreme Court and Abortion

The President is about to announce his nominee to fill the newly vacant seat on the Supreme Court. That will set off a bruising confirmation battle that will stretch into September at least. The rhetoric will be heated and likely ugly, and may even include a large dose of religious intolerance. As this maelstrom kicks off, it’s important that we have realistic expectations about what this will mean for legalized abortion.

It is a clear sign of the debasement of our American political society that so much energy and effort are going to be devoted to a Supreme Court nomination. The loss of a proper understanding of natural law and the dominance of a sense of moral agnosticism have left our government and courts without a moral and legal compass to guide them in interpreting and making civil law. The centralization of power in Washington, which was never envisioned by the Founders of our nation, has given the federal government and especially the courts a disproportionate control over public policy, when compared to the states. One consequence of this has been the constitutionalization of what should be political questions, as we have seen in the issues of abortion and marriage. Another consequence has been the increasing intrusion of politics into areas that are rightly protected personal liberties, such as the freedoms of speech, religion and association.

The worst consequence has been that the Supreme Court — and particularly the “swing vote” that was exercised by the retiring Justice Kennedy — has become our de facto ruler when it comes to essential questions of the separation of powers between the branches of government and crucial social issues relating to life, family and religion. It is truly bizarre that the last few weeks in June is a time of great anticipation, as the Supreme Court’s term comes to an end and we citizens passively wait for rulings that will define our lives. This is why I often derisively refer to the Court as our “Black-Robed Platonic Guardian Rulers” — a role that Washington, Hamilton and Madison would be horrified to see.

These trends are so deeply rooted that we have to have realistic expectations. None of the nominees to the Court will change this sorry situation. None will restore the correct separation of powers or the federalism that were built into our constitutional structure as a defense against the abuse of power. None will stop the trend of constitutionalizing political questions.

We particularly have to be realistic when it comes to the momentous issue of abortion. There is no question that Roe v. Wade decision was wrongly decided as a matter of morality and legal reasoning, and that it has had a corrupting effect on the law, the legal profession and the judicial confirmation process. It is imperative to see it and its progeny overruled (particularly Planned Parenthood v. Casey, which really is the controlling law now, not Roe), and for the constitutional rights of unborn children to be recognized and protected. But that isn’t going to happen any time soon, no matter who the President selects.

Regardless of who the nominee is, it is far from clear that that there would be enough votes on the Court to overrule Roe and Casey. Of the current judges on the Court, four are certainly never going to vote to overrule or even meaningfully limit abortion; only one, Justice Thomas, has ever said that he would vote to overrule; Chief Justice Roberts and Justice Gorsuch both called Roe “settled law” during their own confirmation hearings, and Justice Alito has said that it has added strength as a precedent because it has survived prior challenges and people have come to rely on it. So it’s not as if Roe and Casey are hanging by a thread and just need one more vote to be overruled.

It’s also important to understand that the “conservatism” of some of the Justices would suggest that they may actually shy away from overruling Roe and Casey, even if they believe that it was wrongly decided. Chief Justice Roberts and Justice Alito, and it would already appear Justice Gorsuch, have a strong tendency to minimalism in their rulings — deciding questions on the most narrow grounds available, and choosing, as Justice Alito once wrote, to “leave broader issues for another day.” You can see that trend in some of the major decisions of the last term, for example the Masterpiece Cakesdecision, where the “conservative” justices supported a narrow ruling and completely ducked the critical free speech issue.

This minimalism is particularly important when one realizes how deeply embedded Roe and Caseyare in Supreme Court jurisprudence. Roe didn’t spontaneously emerge fully formed from the brow of Justice Blackmun, nor did the infamous “mystery of life” passage in Casey come out of nowhere. They were the result of decades of prior decisions, reaching back to the 1920’s, in which the Court recognized or invented “privacy” and other rights that are nowhere enumerated in the Constitution, many of which have no basis in history, tradition or natural law. Some of these decisions were actually correct, but many were perverse (like the contraception decisions Griswold and Eisenstadt), and all of them laid the groundwork for Roe and Casey. They also stemmed from a theory of absolute personal autonomy that evolved from the political liberalism on which America was founded and that produced the culture of sexual libertinism and moral relativism that we currently inhabit.

Overruling Roe and Casey would thus mean that the “conservative” Justices would be repudiating an entire body of law and a political and moral philosophy that is so deeply entrenched in our society that most people find any alternative view virtually incomprehensible. They would also set off a political explosion that would undermine the legitimacy of the Court in the eyes of a large number of Americans and many powerful elected officials. Such a momentous decision would be virtually unprecedented in American history, with the only prior examples that I can think of being Brown v. Board of Education and Roe itself.

Even if the Justices mustered the fortitude to overrule Roe and Casey, abortion would not suddenly be made illegal across the United States. The issue would then return to the states for regulation. A number of states already have laws on the books that would essentially permit abortion on demand for some, if not all of pregnancy. New York’s statute, for example, permits abortion on demand prior to 24 weeks of pregnancy. According to one expert on abortion law, if Roe and Casey were overruled, only eleven states have laws that would completely outlaw abortion, and over 80% of Americans would live in states where the situation would be essentially unchanged — abortion would still be legal for all nine months of pregnancy for virtually any reason and with little effective regulation.

It is also likely that state courts would step into the breach and declare a constitutional right to abortion. Iowa’s Supreme Court did so just last week, and as many as twelve other states had previously done so. We would also expect increased pressure in solid liberal states like New York to expand abortion rights through legislation.

This is not to say that we should expect that nothing will change for the better. I fully expect that the new Justice will be a legitimate constitutional originalist, which means that they would interpret the Constitution according to its actual original meaning. I also expect that they will show greater respect for the separation of powers and federalism. And I believe that at least in the short term they will vote to permit states to have greater leeway in regulating abortion, and to protect religious liberty and freedom of expression. Those would all be good developments, and may begin the process of rolling back Roe, Casey, and the terrible decisions that underlie them.

A new nominee to the Supreme Court will not be a magic bullet that will make all things new. Our challenge is to continue to press for social and legislative change that would increase respect for human life. We also have to work harder to create a social infrastructure that would replace the culture of contraception and abortion and promote a vision of women’s health that truly respects her fertility and genuine freedom. We still have a lot of work to do.

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