On Roe, Kavanaugh, and the Future of the Abortion Debate

When it comes to American politics, no single issue is as fraught with emotion and passion quite like the abortion debate.  Since the landmark case in 1973, Roe v. Wade has been controversial and powerful force within our culture.  Where one stands on this important issue has become a shorthand for which party one belongs to and a whole host of other issues usually bundled into the moral and logical underpinnings of the case.

In some sense, that is unfortunate.  One of the reasons there used to be liberal Republicans and conservative Democrats was because this was but one issue among hundreds that are much more decisive as to whether one would be conservative or liberal.  Over the last 40 years, however, it has become the third rail of party ideology; if you are pro-life you are almost certainly a Republican, and if you are pro-choice you are almost certainly a Democrat, with all other issues subsequent or less important afterthoughts.  This sorting of the parties is a major cause of the lack of ideological diversity on a whole host of issues within each of the parties.  It is unlikely to yield anytime soon.

Nonetheless, what “Roe” actually stands for and has evolved into is somewhat different than what most of the public believes it to be.  With Justice Kavanaugh recently named to fill a Supreme Court vacancy left by Anthony Kennedy, and much fear about Republicans possibly overturning Roe, it is back in the forefront of politics again, just in time for the 2018 midterms.  We at the TeamPurpleMN blog have decided that a quick primer on the history of the case, the current legislative and judicial framework, and how Kavanaugh’s nomination might impact it is certainly warranted.  Our position and mission advocacy follows at the end.

A Quick History on Roe and Subsequent Opinions. 

Roe v. Wade (410 U.S. 113;  93 S. Ct. 705; 35 L. Ed. 2d 147 (1973)) is one of the 20th Century’s most important decisions.  As many legal scholars have noted on both sides of the argument, it is one of the best written opinions in Supreme Court history in both it’s logic and its legal justifications (regardless of what one feels about it morally), and we highly recommend everyone read it (you can find it here: https://caselaw.findlaw.com/us-supreme-court/410/113.html ) .  The majority opinion, as composed by former General Counsel to Mayo Clinic and Nixon appointee, Justice Harry Blackmun, was hardly considered divisive at the time and secured 7 of the 9 Justices signing onto its framework.  President Nixon didn’t even comment on it when it was decided, and only when directly questioned about it years after leaving office did he somewhat approve of the decision.

What many assume Roe stands for is an unfettered right to an abortion or access to one.  This is actually not true. What Roe actually says is that based on a generic right to privacy implicit in the Constitution (and elaborated on in Griswold v. Connecticut, which guaranteed a right to birth control), that the Due Process clause of the 14th Amendment extends that right of privacy to a woman’s right to terminate her pregnancy, if she chooses, but that right is balanced against a state’s interest in regulating abortions, protecting the woman’s health, and the potentiality of human life.  Arguing that the state’s interests become stronger later in the pregnancy, Roe set up a trimester framework where in the first trimester states could not prohibit abortion, in the third trimester they could almost prohibit it outright subject to the health of the mother, and in the second trimester they had to balance the interests of the mother, child and state regulation.  Any regulation hindering a woman’s access to an abortion in this regard would have to demonstrate a compelling state interest.

At the time the decision was hardly considered as it is today.  However, two growing movements latched onto the issue in different ways.  The growing Women’s Rights movement and Equal Rights Amendment movement used it as a sign to show women’s growing impact within American society, while evangelical leaders, who coalesced into the growing “moral majority” movement in the early ’80s, used it as a means to show a degradation and moral decay within society.  In the early-mid ’80s, as economic issues transitioned to more social ones, it became the biggest wedge issue in politics.

The decision all but guaranteed that any legislation, both at the state and the federal level, would be subject to a stringent judicial review.  This has given it the criticism that the issue is now decided judicially instead of legislatively.  As a result, the selection of appointees to the federal courts (especially the Supreme Court) became particularly important, particularly to the Republicans in power looking to curtail abortions.

Over the 1980s, different regulations intended to hinder women’s access began cropping up nationally and making their way to through to the Supreme Court.  It because evident to all watchers that the makeup of the Court mattered on this issue, and in 1989 when Webster v. Reproductive Health Systems (imposing restrictions on state funds, personnel and resources) was decided, that an additional vote on the Court would tip the scales and possible provide the vote to overturn Roe v. Wade.  Reagan had appointed Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy and elevated original Roe dissenter William Rehnquist to Chief Justice.  George H.W. Bush had appointed David Souter and Clarence Thomas to the Court.  With six of the nine on the Court GOP appointees, everyone thought Roe was doomed.

So it was with great surprise that in 1992 the Supreme Court UPHELD Roe in Casey v. Planned Parenthood, with some modifications.  Uncomfortable with the outright overturning of Roe, three GOP appointees (O’Connor, Souter and Kennedy) joined with the liberals of the Court maintaining Roe.  There were two major changes that they made though: 1) They scrapped the trimester framework in lieu of setting the timeline for regulation based on fetal viability (the point the fetus can live outside of the womb); and 2) they created an “undue burden” standard for any regulation that gets in the way of a woman trying to terminate the pregnancy prior to viability (which has been determined on a case basis over the next 25 years as to what actually is an “undue burden”).  For a great behind the scenes look at the Supreme Court in that turbulent period, I strongly encourage you to read “Closed Chambers” by Edward Lazarus (  https://www.amazon.com/Closed-Chambers-Future-Modern-Supreme/dp/0143035274  ), who was a clerk at the Court at the time.

By and large (and without getting further into the weeds), that’s basically where we are at the moment with one big difference.  Many of the justices on the Court at the time, including the three authors of Casey, are no longer on the Court.  In fact, the Court has become even more divided as replacements have been more dogmatic in their partisanship since then, culminating with the replacement of Casey co-author Kennedy with potential Justice Brett Kavanaugh.  This is why many have been claiming the death knell for Roe is at hand.

What Overturning Roe Would Do. 

Assuming Kavanaugh and other GOP appointees to the Court do indeed overturn Roe, what would the impact be?  The first and most important outcome of this scenario is that it returns Roe back to the states, who can then regulate it as they see fit.  Roe made abortion a federal issue by protecting it as a right within a “right to privacy”;  by undoing that, since it is not specified within any of the enumerated powers of Congress or Constitutional amendments, it sends it back to the states under the 10th Amendment. It would be particularly noteworthy that five men would be the ones overturning the decision that many women hold sacred as a privilege.

Many states still have (currently unenforceable) bans on abortion on the books.  Many others will seek to prohibit it legislatively.  Others already have various other prohibitions, such as doctors licensure, facilities requirements or other requirements, that make the ability to terminate a pregnancy already difficult if not impossible for most women.  In short, it becomes a local touchstone everywhere, and becomes more of a legislative/political issue at the state level instead of a judicial one.  With over 60% of likely voters consistently claiming to be pro-choice, in many areas this will not be as devastating as it would be in many rural states where voters tend to be more socially conservative, primarily in the midwest and southern states.

But the Supreme Court does not have to overturn Roe outright to cause basically the same result.  For instance, they can keep validating state regulations that make obtaining abortions more difficult. This “death by a thousand cuts” strategy would keep Roe at the federal level, keep it judicially oriented (which, with justices expected to be on the Court for the next 20 years, means it won’t possibly be overturned for some time) and would make it extremely difficult to change.  As you can see, there are legitimate reasons for pro-choice groups to feel nervous about Kavanaugh’s appointment.

On a more socio-economic level, it is highly likley that obtaining an abortion becomes a matter of class distinction.  Even before Roe was decided, wealthy families were sometimes able to procure abortions for unwanted pregnancies based on relationships; the more affluent one is, the more likely they are to know a sympathetic doctor or someone who knows one.  Those without such relationships, unable to find a doctor willing to provide an abortion, would thus either have to carry to term an unwanted child or request a “back alley” abortion from less than credentialed individuals.  Recently, the head fundraiser for the GOP paid a former playmate $1.6 million to receive an abortion (and keep quiet about it); when you consider the hypocrisy of this incident (the head money guy for the party seeking to outlaw abortions seeking an abortion) you can start to see the direction this issue may be heading at a socio-economic level.

In addition, more children born to poorer people means more social programs necessary to assist these families and prevent increases in crime.  It would require more child care funding (which is usually a tax credit), more children’s health care funding (which a GOP congress had trouble passing despite widespread support), more education funding (GOP has cut considerably over the years), likely more welfare funding (GOP abhors such funding and routinely makes it more difficult to get), etc.  Since social funding issues are antithetical to conservative orthodoxy, it has the potential to be a public policy boondoggle for years.

The Position of TeamPurpleMN

Currently, TeamPurpleMN consists of two men.  We would never dare presume to say we know better than most women and their doctors what is best for their health, their lives and the potential lives of their children.  We believe that the choice aspect of this issue is far too important and that the wisdom displayed by Souter, O’Connor and Kennedy in Casey, and by Blackmun as originally described in Roe best exemplifies the framework in which this issue should be handled.  ANY other legislative framework potentially results in the decision being taken out of the hands of the mother (or her physician) and into the hands of people without a direct vested stake in the matter.

So we at TeamPurpleMN declare our position as pro-choice.  However, what is often lost in this debate is that being pro-choice and pro-life are NOT mutually exclusive.  We also believe that Roe and Casey keenly describe the timelines involved, and perfectly captures when the interests of the child and the state in regulating abortions set in.  In determining the viability of the fetus outside the womb as the point in which abortion may be prohibited (but for cases where the life of the mother is in doubt), Casey underscored that the lives of the mother and fetus should both be considered at that point.  It also iterated that as technology improving fetal viability becomes more available, that that timeline may be moved up earlier in the pregnancy as a result.

In addition, pro-life should not mean interest in the fetus ends at birth, but should extend past it to ensure every child has adequate care, that the mother has means to ensure that, and that their socio-economic position does not impede the lives of their children.  That means that there should be more funding for children’s health care (unequivocal support for S-CHIP), for day care, for education and for food programs, all of which to ensure kids are adequately cared for, without bankrupting parents or forcing them to choose between working multiple jobs or spending time with their young ones.

Lastly, we also believe that more can be done to remove the social stigma of being an unwed, single or young mother and to make adoption a much easier, simpler process. Many young women do not know where to go or what to do when they get pregnant and abortion can be a quick, simple option.   We believe pro-life efforts would be better spent making adoption and women’s health services (and the previous programs mentioned in the previous paragraph) more readily available and easier to access for women, than in exerting cruel efforts to close Planned Parenthood offices or limiting access to women’s health, and stigmatizing those seeking help.

As always, we welcome your comments.  Please feel free to contact us through the site.

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