I don’t know the right answer on abortion. I do know based on the oral arguments recently heard by the Supreme Court regarding Mississippi’s abortion law that our country has problems that cut deeper into our national fabric than the specifics of any abortion law.
The out-of-the-box role the Founders had in mind for the Supreme Court, basically a check the other branches of government were consistent with the blueprint laid down in the Constitution, did not last long. Almost from the get-go the Court claimed additional authority for itself to strike down laws (Marbury v. Madison, 1803,) with the doctrine of judicial review.
In the years since, the Court has used its power to wrestle with Americans over how their country should work. The Court once confirmed slavery (Dred Scott v. Sanford, 1857), later pulled a reluctant public by the ear away from segregation (Brown v. Board of Education, 1954 but only after it had earlier endorsed segregation in Plessy v. Ferguson, 1896 ) and trailed public opinion on same-sex marriage before finally confirming it (Obergefell v. Hodges, 2015.)
But whether leading public opinion or trailing it, the Court assumed a role not thought of by the Founders, one in the absence of common agreement, to decide how Americans would live. Should we be a slave-owning nation? Should our schools be segregated? Should same-sex marriages be legal? In case after case the Court took it upon themselves to determine a solution to a social issue, seeing the need for a nation-wide answer to a contentious question once left to each state.
And that leads us to abortion. Abortion exists at the raw edges of human existence. It is a religious issue, it is an issue intimately tied to liberal and conservative politics. It can decide elections. In cases of rape, incest, or the health of the mother, it is a moral issue. It is a states’ rights issue. It is women’s health issue and a societal burden issue. It is a socio-economic issue, with the population of women who seek abortions skewed by economics and race. It is healthcare or murder.
The Court tried in 1973 to pry Americans from each others’ throats over abortion via Roe v. Wade. When the case was first heard, 30 states had complete bans on abortion. Sixteen states had full bans except for rape, incest or the mother’s health. Three states allowed most abortions, but only for residents. Only New York allowed abortions for out-of-state women, but capped them at 24 weeks unless the mother’s health was in danger.
With Roe the Court took it upon itself to create a kind of compromise out of all that: during the first trimester a state cannot regulate abortion beyond requiring the procedure be performed by a licensed practitioner. During the second trimester a state can regulate abortion if the regulations are reasonably related to the health of the pregnant woman. And during the third trimester, the state’s interest in protecting the fetus outweighs the woman’s rights, so a state may prohibit abortions unless an abortion is necessary to save the life or health of the mother. Roe v. Wade did not legalize abortion per se. What it did was change the way states can regulate abortion.
Roe also said abortion was a constitutional right, a claim which forms the basis for many who believe the case was wrongly decided. Critics acknowledge while the Court tried to do its best with an impossible problem, nowhere does the Constitution say anything close to abortion being a right, alongside say freedom of speech or due process. They argue the Court should never have essentially written via Roe the law Congress would not.
The basis of the right to abortion seems to rest in the 14th Amendment, which otherwise was concerned with equal protection for freed slaves. This bastardization, which allowed the Court in 1973 to create an abortion policy for the entire nation without any democratic input, may prove the basis for Roe’s undoing. Even one of the Court’s greatest liberal justices, Ruth Bader Ginsburg, knew Roe was bad law, writing “Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.”
Roe’s other shortcoming was in saying states could not outright ban abortions in the first 24 weeks of a pregnancy. The number was something of a compromise; Justice Harry Blackmun, the author of the majority opinion in Roe, once called the line arbitrary. The question of where to draw the line for abortion, at Roe’s 24 weeks or Mississippi’s 15 weeks, begs the question of why a line exists; aren’t the legal interests (aside from religious/moral ones) basically the same throughout a pregnancy?
In subsequent cases, Planned Parenthood v. Casey, 1992 and Whole Woman’s Health v. Hellerstedt, 2016, the Court modified Roe in response to many states imposing laws trying to limit abortions by making the process too complicated, expensive or cumbersome. The Court said in the cases above “such laws could not impose an undue burden,” defined as one having “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”
For all that is unclear, three things are clear: 1) Roe always allowed for regulation. It was never abortion without restriction; 2) if the Court can reverse itself on slavery and segregation it can reverse itself on abortion, and 3) almost no one thinks Roe forever settled the issue of abortion in America. America will ask, and answer, the question anew.
The current vehicle for asking and answering is Dobbs v. Jackson Women’s Health Organization, which concerns a 2018 Mississippi law banning almost all abortions after 15 weeks. Its version of regulation is a direct challenge to Roe’s (Texas’ latest attempt to restrict abortion, SB8, will be heard separately.) The Court heard oral arguments on Dobbs in late November. A decision will be announced in 3–6 months, and will likely have more affect on the midterm elections than any other factor.
The Court can decide to keep Roe as it is and tell Mississippi to get with the program, it can accept Mississippi’s version (i.e., no abortion after 15 weeks) and upend Roe, or it could ignore Mississippi’s version and re-write Roe to create new rules for each trimester. Any of the three would be consistent with the way the Court has acted for some 220 years.
What is troubling are some of the statements made during oral arguments by the so-called liberal justices, particularly Justice Sotomayor. Sotomayor went as far as to question whether the legitimacy of the Court itself could endure if it overturned abortion rights. “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” She accused Mississippi of moving forward with abortion restrictions only “because we have new justices,” referring to the three Trump appointees, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. “If people actually believe that it’s all political, how will we survive?” Sotomayor continued.
The other liberal justices, Stephen Breyer and Elena Kagan, were equally vehement in their support for abortion as a constitutional right. Alongside Sotomayor, they continually claimed that Roe was “settled law” and was thus somehow above being re-examined. It was left for Justice Kavanaugh to point out to any first year law students in attendance the long line of celebrated cases in which the Supreme Court overruled precedents. If the court had adhered to stare decisis in those cases, he says, “the country would be a much different place” (to include segregation and slavery.) Kavanaugh finished his lecture by noting every current member of the Court has voted to overrule constitutional precedents in various past cases.
Since Congress has steadfastly refused for decades to legislate on the issue, the Court has been left to glean the Venn diagram boundaries of religion, public policy, and individual rights. The compromises and weaknesses in Roe are because of what Congress has avoided doing. Any decisions the Court has made in the past, and the decision they will make in the instant case, will be imperfect. But that’s only the beginning.
The deeper problem is the Court has taken such an overtly political, partisan turn. Sotomayor in particular embarrasses herself with a fan-fiction quality take on settled law, and her claim that a decision which does not fit her political beliefs will destroy the legitimacy of the Court. She believes in precedent when she agrees with it and does not believe in it when that suits her better. She has suggested the last president’s appointments to the Court are somehow wrong because their mere presence allows Mississippi to challenge Roe. Americans have been trained to claim anytime a court decision or an election goes against their personal preference that means the system is unfair. Shame on Sotomayor for fanning those flames by suggesting her fellow judges are biased and she alone is not.
Sotomayor is a zealot who sees politics above justice. In that sense it is unclear Sotomayor actually understands how the Supreme Court is supposed to work. If Roe falls, its supporters may wish to re-examine their champion’s role in so poorly defending it.
Peter Van Buren is the author of We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People, Hooper’s War: A Novel of WWII Japan, and Ghosts of Tom Joad: A Story of the 99 Percent.