In this May 23, 2019, photo, the U.S. Supreme Court building at dusk on Capitol Hill in Washington. (AP Photo/Patrick Semansky)
COMMENTARY – Last week’s explosive leak of a Supreme Court draft opinion suggesting the imminent reversal of Roe v. Wade unleashed a firestorm of reaction. Abortion proponents have launched a full-throttle campaign against conservative Supreme Court justices, sending protesters to their private residences. Democratic lawmakers have called for a swift and immediate revival of plans to pack the Court in an effort to counter conservative influence.
Senator Susan Collins of Maine was publicly accosted for her prior vote to confirm Brett Kavanaugh as a SCOTUS justice. In a bid to prevent violence, police have surrounded the Supreme Court with a 9-foot high metal barricade. Pro-choice groups targeted churches on Mother’s Day, claiming that “six extremist Catholic judges set out to overturn legal abortion.”
Opponents of the proposed action feel that the high court’s conservative majority will follow up by overturning precedents protecting same-sex marriage and civil rights. For them, everything is now up for grabs.
A leak of this magnitude is unprecedented in Court history. Our own Senator Mike Lee claimed that the leak is meant to “threaten and intimidate the Supreme Court.” Lee also suggested that the informant is attempting to ‘embarrass and isolate’ those on the court who oppose Roe. Suspicion abounds that the leak was also meant to bolster Democrats going into the mid-term election, as they seize on an issue where they believe the public is on their side.
Republican lawmakers have called for an immediate investigation into the leak, and prosecution to the fullest extent of the law, while Senate Democrats will call for a vote this Wednesday on a bill to codify the abortion protections in Roe v. Wade in an attempt to pre-empt the Court’s action.
Many feel that what is at stake is more than Roe v. Wade, but the very integrity of the Supreme Court itself. On Friday, Justice Clarence Thomas argued that “government institutions mustn’t allow themselves to be strong-armed into delivering outcomes that people demand.” Later, Chief Justice John Roberts added that the Court’s decision will not be affected by the leak, “If the person behind it thinks it will affect our work, that’s just foolish.”
Aside from protests, and legal posturing, what can we expect if Roe v. Wade is overturned?
First and foremost, overturning Roe will not end legal abortion in the United States. The issue at hand is not abortion per se, but state’s rights. The 1973 legal precedent of Roe v. Wade wrestled the regulation of abortion from the states into the hands of the Federal Judiciary. In the 67-page leaked majority opinion, its author Justice Samuel Alito calls Roe v. Wade “egregiously wrong from the start” and says, “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” He went on to state that there is nothing in the constitution or the 14th amendment referencing or even alluding to abortion.
Alito does his best to argue that it is not only conservatives who found the original reasoning in Roe lacking; “Roe reads like a set of hospital rules and regulations that neither historian, layman, nor lawyer will be persuaded are part of the Constitution.” The leaked opinion is not as much of a ‘passing of the buck’ as it is a recognition of the autonomy of the states. The Supreme Court has taken other similar positions on contemporary issues like public safety and healthcare.
A flurry of legal wrangling at the state level is certain to follow, leading to numerous contrasting and opposing laws and regulations in different states. Some states have already laid the legal groundwork for the shift. State Attorney Generals will head to court to seek laws relating to parental consent, prenatal nondiscrimination, and the banning of abortion on the grounds of prenatal diagnoses. The legal actions and challenges will play out in highly dissimilar ways given the differing laws on the books in each state.
According to the Family Research Council, 18 states are set to protect life at conception in accordance with their own laws if Roe is overturned. An additional 4 states will protect life when a heartbeat is detected. California, New York, and 18 other states will not protect unborn life. Utah’s own ‘trigger law’ will ban most abortions.
While some have long considered abortion law to be essentially settled since Roe, the jurisprudence around this issue has been in flux for many years. What has changed since 1973? As technology has progressed, the viability of the fetus has been determined to be earlier and earlier. Prenatal ultrasounds did not exist at the time Roe v. Wade was signed into law.
Secondly, expect battles, both legal and otherwise. The road will not be easy for either side in the continuing controversy. Pro-choice states are not in holding patterns. Rather, they have already taken action to become abortion sanctuaries. California is considering amending its state constitution to guarantee legal abortion. Gov. Gavin Newsom is also on record having vowed to make California a safe haven for any women who cannot legally get an abortion in other states. In an America with so many contrasting and conflicting state laws, frequent and protracted litigation looks hard to avoid.
The next chapter in the legal story of abortion is going to involve how the state laws interact with each other. A pro-life state allowing private parties to sue abortion providers could be thwarted by a pro-choice state that allows those private parties to countersue. And pro-choice states could block out-of-state attempts to investigate or extradite their abortion providers. The well-funded abortion industry is likely to become highly creative in developing legal challenges to abortion restrictions.
Finally, we could see the end of abortion litmus tests for politicians. No single issue has been more destructive to bipartisanship. The Republican Party has largely purged itself of pro-choice candidates who otherwise might make valuable contributions. Pro-life Democrats long ago became obsolete. Supreme Court nominations might no longer hinge so disproportionately on whether a nominee will vow to uphold or overturn Roe.
Whether we’re moving forward or backward as a country, only time will tell. Those who either hail Roe’s demise, or strongly lament it, are likely assuming the reversal will end abortion. Upon further investigation, it appears to be a shift in legal jurisdiction only. Regardless of your position, buckle up. We’re in for a long and bumpy ride.
Marc K. Ensign