Suddenly, abortion and abortion rights are back in the center of discussion. Lost for the moment are local worries like the destruction of the Mill House or town budgets, or national ones like the findings of the Mueller report, or international crises like saber-rattling with Iran, high tariffs on Chinese goods, or renewed North Korean missile tests.
But abortion grabbed the public’s opinion after several states, most recently Georgia and Alabama, passed highly restrictive abortion laws. Other states have passed similar laws, and several are contemplating them. Even in neighboring Rhode Island, according to the Boston Globe, the state Senate’s Judiciary Committee recently rejected an abortion-rights bill.
In Massachusetts, the state constitution, according to the Supreme Judicial Court, protects abortion rights. Current law prohibits abortions after 24 weeks unless the life or health of the mother is at risk. Meantime, a proposed law called the Roe Act would expand rights, including extending the reasons why abortions could occur after 24 weeks, and ending the requirement that minors must gain parental consent.
In light of the new, highly restrictive laws, abortion-rights advocates have sounded the alarm that, as the Massachusetts branch of Planned Parenthood puts it, the Supreme Court is “poised to gut” Roe v. Wade. This talk has gone on for almost a year since President Donald Trump nominated his second conservative to the court: Brett Kavanaugh.
Last summer, the Senate Judiciary Committee specifically asked Kavanaugh to explain his views on Roe. His response was that it occupies a place secured by the legal principle known as stare decisis [“let the decision stand”], the standard known as precedent. Law students, lawyers, and judges all understand precedent: That is the way law is taught, and that is the way it is practiced. Kavanaugh said at his confirmation hearing that Roe was “settled precedent,” and at one point, “a super-precedent.”
But leaked emails from his 2003 service in the George W. Bush administration revealed that he thought it could be overruled.
Then, on May 13, more lightning struck: In a case involving state sovereignty, which had nothing to do with abortion rights, the Supreme Court overruled a 40-year-old precedent. Writing for the court, Justice Clarence Thomas noted that precedent is “not an inexorable command,” words that echoed those Chief Justice John Roberts used in his concurring opinion in the 2010 Citizens United case, and Justice Anthony Kennedy used in South Dakota v. Wayfair just last year.
And it is true. Sometimes earlier precedents are overruled. Take the school desegregation case of Brown v. Board of Education, which essentially overruled an 1896 decision establishing the constitutional principle that people could be separated on the basis of race. Or the 1940 decision when the court required children in public schools to recite the Pledge of Allegiance each day. Three years later, that precedent was overturned.
Before total panic sets in among abortion-rights activists, let’s review the big picture. First, it is true that abortion rights are under attack in many states. Even more, the Guardian recently revealed that one very small group of anti-abortion activists called the Center for Family and Human Rights, C-Fam for short, has made great strides in lobbying the Trump administration to move against abortion rights and family planning. (The group, which apparently consists of only six staff members, was originally called the Catholic Family and Human Rights Institute.)
One example the paper gave was how C-Fam persuaded the Trump administration to instruct their representative at an international women’s conference to avoid mentioning the words “sexual or reproductive health.”
But third, and this is key, let’s think about the court itself. As is well known, five conservatives dominate the Supreme Court: Chief Justice Roberts, and Justices Thomas, Alito, Gorsuch, and Kavanaugh. While three of them, Thomas, Alito, and Gorsuch, may well vote to overrule Roe, I wouldn’t jump to say Roberts and Kavanaugh will follow.
Roberts has demonstrated that he believes deeply in the reputation and integrity of the court. He does not want it to appear as “just another” political institution, even if at times it is. He provided the fifth and key vote to uphold the Affordable Care Act (Obamacare) in 2011, and recently, he roundly chastised Trump after the president criticized those he called “Obama judges.”
Roberts retorted, “We do not have Obama judges or Trump judges, Bush judges, or Clinton judges. What we have is an extraordinary group of dedicated jurists doing their level best to do equal right to those appearing before them. The independent judiciary is something we should all be thankful for.”
Nor do we really know Kavanaugh’s position on abortion rights, or specifically on Roe. The only abortion-related case he heard as a judge on the D.C. Circuit Court of Appeals concerned an undocumented young woman, a minor, who wanted an abortion. His position was not on the substance of the issue, but on procedure: He thought that as a minor she should have a sponsor, and he thought she had enough time to find one.
The problem for abortion opponents is the way the new bills are drafted. Some are so-called “heartbeat” bills, that after the sixth week or so of a pregnancy, the heart of the fetus is beating, and therefore it is a person. Alabama’s law goes farther, and says that at the moment of conception, a person is created. It thus criminalizes a physician who ends a pregnancy, who is liable to spend up to 99 years in prison.
I cannot see where personhood-ness will fly if challenges to these laws reach the court. This may well doom these laws: Does this mean a fetus must be counted in the census, or taxed if it earned money, say by a dividend from a trust? What about other areas of the law? It takes four of the nine justices to accept a case for adjudication, because the court possesses what is known as discretionary jurisdiction. I see three but not four doing so.
Jack Fruchtman, a seasonal Aquinnah resident, teaches constitutional law and politics at Maryland’s Towson University.