Amer­ica now faces bat­tle to pro­tect right to choose

The de­bate over abor­tion in the US has taken a sig­nif­i­cant turn with the ap­point­ment of Brett Ka­vanaugh B. JESSIE HILL re­ports

The New European - - Agenda - B Jessie Hill is the Judge Ben C. Green pro­fes­sor of law at Case West­ern Re­serve Uni­ver­sity; this ar­ti­cle also ap­pears at the­con­ver­sa­tion.com

As the dust set­tles on his con­tested nom­i­na­tion, at­ten­tion is now shift­ing to what im­pact Brett Ka­vanaugh’s con­fir­ma­tion to the Supreme Court will have on Roe v. Wade, the land­mark case recog­nis­ing Amer­i­can women’s right to choose to ter­mi­nate a preg­nancy. Will it re­main the law of the land?

Ka­vanaugh told Sen­a­tor Susan Collins – a key vote to ap­prove his nom­i­na­tion – that he viewed Roe v. Wade as “set­tled law”. Yet its fu­ture looks more ten­u­ous than it ever has.

Re­plac­ing Jus­tice An­thony Kennedy, who re­tired this sum­mer, with Ka­vanaugh, a deeply con­ser­va­tive judge, will fun­da­men­tally re­make con­sti­tu­tional doc­trine in this area. In 1992, Kennedy’s swing vote pre­served Roe v. Wade in a 5-4 de­ci­sion. More re­cently, in a 2016 case, Kennedy’s vote was crit­i­cal to the five­jus­tice ma­jor­ity, which again af­firmed the right to choose as fun­da­men­tal.

But, de­spite what he told Collins, Ka­vanaugh has ex­pressed hos­til­ity to Roe. In a speech last year, Ka­vanaugh praised the late Chief Jus­tice Wil­liam Rehn­quist’s dis­sent from the Roe de­ci­sion. He also voted against an un­doc­u­mented mi­nor in govern­ment cus­tody who wanted an abor­tion. His record sug­gests Ka­vanaugh could pro­vide a crit­i­cal fifth vote to the anti-roe wing of the court, join­ing jus­tices Clarence Thomas, John Roberts, Sa­muel Al­ito and Neil Gor­such.

If the Supreme Court does vote to over­rule Roe, it wouldn’t im­me­di­ately make abor­tion il­le­gal through­out the coun­try. That would prob­a­bly re­quire five jus­tices to de­cide that em­bryos and fe­tuses are “per­sons” en­ti­tled to con­sti­tu­tional pro­tec­tion. No jus­tice – not even the strongly anti-abor­tion Jus­tice An­tonin Scalia – has ever taken such an ex­treme view.

In­stead, the court would prob­a­bly say that states are al­lowed to re­strict abor­tion how­ever they see fit. That means some states would prob­a­bly out­law abor­tion al­to­gether, per­haps with nar­row ex­cep­tions in cases of rape or in­cest, or when the woman’s life is in dan­ger. Other states may place few or no re­stric­tions on abor­tion – per­haps mak­ing it il­le­gal only once the fe­tus is vi­able, typ­i­cally af­ter the 22nd week of preg­nancy.

Nu­mer­ous states stand ready to mount a chal­lenge to Roe. In 2018 alone, seven states have in­tro­duced or passed so-called ‘heart­beat bills’ that ban abor­tion as early as six weeks of preg­nancy. These laws are bold as­saults on Roe’s cen­tral premise: that states can­not ban abor­tions early in preg­nancy.

A chal­lenge to a ‘heart­beat bill’ could bring Roe be­fore the court, but in re­al­ity, a chal­lenge to a law like that isn’t even nec­es­sary. In fact, al­most any abor­tion case, in­clud­ing sev­eral that are al­ready pend­ing, could be­come a ve­hi­cle for over­turn­ing Roe if the jus­tice choose to hear it. The Supreme Court gets to pick and choose the cases it hears and needs only four jus­tices to vote to hear a case. That means it might de­cide to weigh in on abor­tion rights as soon as this autumn.

For ex­am­ple, the newly-com­posed Supreme Court could de­cide to take up the con­sti­tu­tion­al­ity of laws in Ohio or In­di­ana ban­ning abor­tions sought for par­tic­u­lar rea­sons, such as fe­tal anom­aly. Both laws have been blocked by fed­eral courts, and ei­ther could still be ap­pealed to the Supreme Court. If the court de­cides to hear one of those cases, it could up­hold the laws on the grounds that Roe was in­cor­rect and a new, more re­laxed le­gal stan­dard should ap­ply to abor­tion re­stric­tions.

What’s more, nine states, in­clud­ing Wis­con­sin and West Vir­ginia, ac­tu­ally still have pre-roe abor­tion bans on the books. These laws weren’t be­ing en­forced as long as Roe was the law of the land. If Roe is over­turned, it’s pos­si­ble that pros­e­cu­tors in those states would try to bring crim­i­nal charges against doc­tors per­form­ing abor­tions, with­out even wait­ing for the leg­is­la­ture to pass a new law ban­ning abor­tion.

Four ad­di­tional states – North Dakota, South Dakota, Louisiana and Mis­sis­sippi – have passed so-called ‘trig­ger laws’

pro­vid­ing that abor­tion will be­come il­le­gal the mo­ment Roe is over­ruled. Even in the ab­sence of laws such as these, though, many state leg­is­la­tures won’t hes­i­tate to en­act new abor­tion bans im­me­di­ately. In fact, the Cen­ter for Re­pro­duc­tive Rights con­sid­ers only 21 states to be rel­a­tively low-risk for pass­ing new abor­tion bans if Roe fell.

Of these 21, a few states are ex­pected to take an ac­tive role in pro­tect­ing abor­tion ac­cess in the ab­sence of Roe. This would likely mean that women in Mas­sachusetts would live un­der a per­mis­sive set of laws, while women in Mis­sis­sippi would face more re­stric­tive ones.

Of course, it’s pos­si­ble Roe will live an­other day. With Ka­vanaugh seated, Chief Jus­tice John Roberts will be at the ide­o­log­i­cal cen­tre of the court, with four con­ser­va­tives – Thomas, Al­ito, Gor­such and Ka­vanaugh – all to the right of him. Roberts is there­fore likely to be­come the swing vote. He is a fa­mously care­ful ju­rist who often avoids over­rul­ing prece­dent by is­su­ing a nar­row opin­ion in­stead. He is also likely con­cerned about his legacy. He might not want the Roberts Court to be the one that over­ruled Roe and took away the right to choose. He might be con­cerned about the back­lash among mem­bers of the pub­lic, who have long as­sumed that Roe was here to stay and who favour keep­ing it by more than a two-to-one mar­gin. Then again, many jus­tices have af­firmed their de­vo­tion to prece­dent, only to later over­turn it. Still, it’s im­por­tant not to lose sight of the big­ger pic­ture. Whether or not Roe goes, with Ka­vanaugh on the bench the Supreme Court is likely to shift far to the right on re­pro­duc­tive rights – po­ten­tially af­fect­ing not just abor­tion, but ac­cess to con­tra­cep­tion as well.

And, even if Roe isn’t over­turned, it may con­tinue to ex­ist in name only, as the Supreme Court is likely to up­hold ev­ery sort of re­stric­tion short of an out­right abor­tion ban. In short, there are many pos­si­ble paths for Roe v. Wade in the fu­ture, and sig­nif­i­cant ques­tions re­main. One thing is al­most cer­tain, though – the court will con­tinue to erode the power of Roe.

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