THE RIGHT TO AN ABORTION ISN'T GOING AWAY
Reason magazine|May 2021
WHILE OVERTURNING ROE V. WADE WOULD LEAD TO NEW RESTRICTIONS IN MANY STATES, LEGAL ACCESS TO ABORTION WOULD BE UNAFFECTED IN MOST OF THE COUNTRY.
JACOB SULLUM

“THEY’RE TAKING AWAY fundamental rights,” Senate Minority Leader Chuck Schumer (D–N.Y.) declared during a pro-choice rally outside the Supreme Court last spring. Turning to point at the building behind him, an outraged Schumer delivered another warning: “I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you have released the whirlwind, and you will pay the price! You won’t know what hit you if you go forward with these awful decisions.”

Schumer’s vague threat against Justices Neil Gorsuch and Brett Kavanaugh, Donald Trump’s first and second Supreme Court nominees, drew a rare public rebuke from Chief Justice John Roberts. “Justices know that criticism comes with the territory, but threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous,” Roberts said in a written statement. “All members of the Court will continue to do their job, without fear or favor, from whatever quarter.”

In addition to impinging on judicial independence, Schumer’s comments proved to be both ineffectual and unfounded. The rally where he spoke coincided with oral arguments in June Medical Services v. Russo, a constitutional challenge to a Louisiana law requiring that doctors who perform abortions have admitting privileges at local hospitals. The Court handed down its decision four months later, and it was by no means what Schumer would consider “awful.”

Gorsuch and Kavanaugh both voted to uphold Louisiana’s law, undeterred by Schumer’s threat. But five justices, including Roberts, concluded that the law was inconsistent with the Court’s abortion precedents and therefore could not stand.

On the face of it, that conclusion was hardly surprising, because just four years earlier the Court had overturned a very similar Texas law in Whole Woman’s Health v. Hellerstedt. But by the time Schumer warned that abortion rights were about to be extinguished, Justice Anthony Kennedy, who joined the majority in Whole Woman’s Health, had been replaced by Kavanaugh. Since Roberts had dissented in the Texas case, Schumer perceived a new majority hostile to the Court’s landmark 1973 decision in Roe v. Wade, which held that the Constitution protects a woman’s right to obtain an abortion.

Schumer did not count on Roberts’ respect for precedent. “I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided,” Roberts wrote in his June Medical concurring opinion. “The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents.”

The fact that Schumer’s fears proved wrong, combined with many previous false prophecies of Roe’s doom, suggests that we should be cautious in predicting the future of abortion rights now that the late Ruth Bader Ginsburg has been replaced by Justice Amy Coney Barrett, Trump’s third nominee to the Court. While the addition of Barrett seemed to cement a conservative majority that takes a dim view of Roe, that development may result in a narrower reading of the 48-year-old precedent rather than its outright abandonment.

Whittling away at Roe, if it means upholding regulations like the ones the Court overturned in 2016 and 2020, would have a significant impact on access to abortion. But the effect would vary widely with geography and income, and it certainly would not amount to “taking away” abortion rights altogether. The same would be true of overturning Roe, which would have no practical impact in most of the country, although it could lead to severe restrictions in some places. Except in states whose constitutions have been interpreted as providing independent protection for abortion rights, those decisions would be left to state legislators, who represent the same wide range of views on abortion as their constituents.

WHAT ROE SAID

ROE ’S CRITICS THINK that is the way it always should have been. As they see things, the Supreme Court in 1973 overrode the legitimate authority of state legislators by inventing a right to abortion with no basis in the Constitution’s text or history. The result, according to this view, was decades of acrimony provoked by the lawless nationalization of abortion policy. Even some supporters of abortion rights, including Ginsburg, have argued that much of that anger could have been avoided if the Court had treaded more carefully.

Although it may be hard to believe in light of the bitter controversy it spawned, Roe was a lopsided decision. Seven justices agreed that a Texas law banning abortion except in cases where it was deemed necessary to save the mother’s life violated a “right to privacy” protected by the 14th Amendment’s Due Process Clause. But the majority opinion by Justice Harry Blackmun went further than that, laying out a set of complicated and technologically contingent rules for determining whether abortion laws pass constitutional muster.

“For the stage prior to approximately the end of the first trimester,” Blackmun said, “the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.” After that, “the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.” Finally, “For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”

In a 1992 lecture, Ginsburg, then a judge on the U.S. Court of Appeals for the District of Columbia Circuit, criticized Roe’s reasoning as well as its breadth. Instead of grounding the right to abortion in a nebulous right to privacy guaranteed by the Due Process Clause, she argued, the Court should have deemed the Texas abortion law a kind of sex discrimination prohibited by the 14th Amendment’s guarantee of equal protection. And instead of laying out rules that invalidated virtually all existing abortion statutes across the country, she suggested, the justices should have limited their decision to the sort of law at issue in the case.

“Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable,” said Ginsburg, who would join the Supreme Court the following year as Bill Clinton’s first nominee. “Suppose the Court had stopped [after] rightly declaring unconstitutional the most extreme brand of law in the nation, and had not gone on, as the Court did in Roe, to fashion a regime blanketing the subject, a set of rules that displaced virtually every state law then in force. Would there have been the 20-year controversy we have witnessed, reflected most recently in the Supreme Court’s splintered decision in Planned Parenthood v. Casey? A less encompassing Roe, one that merely struck down the extreme Texas law and went no further on that day...might have served to reduce rather than to fuel controversy.”

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