WASHINGTON — With the replacement this fall of retired Justice Anthony Kennedy, the longtime “swing vote” of the U.S. Supreme Court, by Justice Brett Kavanaugh, the U.S. Supreme Court may finally have a majority aligned against the 1973 Roe v. Wade and Doe v. Bolton decisions that legalized abortion throughout the United States. The conservative majority may find its test on abortion coming sooner rather than later.
Greg Schleppenbach, associate director of the U.S. bishops’ Secretariat of Pro-Life Activities, told the Register the bishops have “cautious optimism” the court’s jurisprudence will move in a pro-life direction with Kavanaugh on the court. But he expected the dismantling of Roe would be “step-by-step,” not accomplished in one fell swoop.
“One can never know for sure, until a case comes before the court, about how the justices will rule,” he said. “We’ll know soon enough how he and Justice [Neil] Gorsuch will vote on abortion legislation.”
Many pro-life advocates noted that Kavanaugh testified before the Senate Judiciary Committee that Roe v. Wade was “settled law.” Sen. Susan Collins, R-Maine, who favors legal abortion, cited Kavanaugh’s assurances on abortion jurisprudence in casting her vote to confirm him as Kennedy’s replacement.
But Paul Linton, special counsel to the Thomas More Society and author of Abortion Under State Constitutions, said one could not read too much into how the new justice views abortion jurisprudence from Kavanaugh’s remarks.
“It’s settled law until it is unsettled,” he said. Linton pointed out that Casey v. Planned Parenthood in 1992 departed from Roe in many respects. The Casey decision threw out Roe’s “strict scrutiny” standard that recognized abortion up to the third trimester as a fundamental right to privacy, and it stifled any state restrictions on abortion before that period. The high court in Casey lowered the level of constitutional scrutiny to say that the state could not impose an “undue burden” on a woman’s access to abortion, which meant states could regulate abortion but not ban it before fetal viability.
Linton said the persistent “anxiety” about Roe v. Wade surviving, even 45 years later, shows it is hardly a precedent as settled as the 1954 Brown v. Board of Education, which struck down racial segregation in public schools.
If Roe were struck down, Linton said, the issue would move to the states, but overall the United States would see little immediate difference in terms of abortion legality. Three-quarters of states, he said, have repealed their pre-Roe abortion laws. And in only half of the remainder, with pre-Roe laws still on the books, would that make a difference on abortion access.
“There would be tremendous political pressure to repeal or modify them,” he said. Best-case scenario: Just 20% of the U.S. population would live in states with more restricted abortion access.
Linton said the high court would likely just make adjustments to existing abortion jurisprudence rather than overturn Roe with just any abortion-related case. However, some abortion laws, if they ended up before the high court, such as the six-week ban based on fetal heartbeat detection, are completely incompatible with Roe v. Wade.
“There you have a direct conflict that we can’t work around,” he said.
First Abortion Test Coming
The test of how the high court may shape abortion jurisprudence with Kavanaugh on the bench may come sooner than people think.
Steven Aden, general counsel for Americans United for Life (AUL), told the Register that the abortion industry has launched a wave of attacks against abortion restrictions and regulations in the wake of the 5-3 Whole Women Health v. Hellerstedt decision in 2016. The 5-3 decision struck down Texas’s 2013 abortion-regulation law, H.B. 2, which required abortion facilities to adhere to health standards of ambulatory surgical centers and for abortion doctors to have admitting privileges at hospitals within a 30-mile radius. Abortion providers claimed the regulations forced many abortion centers to close, declining in number from 42 to 19.
Aden explained that abortion providers argue the Hellerstedt decision now applies a “balancing test” to determine laws and regulations on abortion that is more strict than how Casey’s “undue burden” standard was previously applied. Aden said Casey affirmed states had a compelling interest in regulating abortion but could not enact laws that would place a “substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”
Abortion providers are now challenging pro-life legislation that states put in place following Casey, arguing regulations have no benefit other than reducing abortion access.
Aden said that, in a balancing test, “if the burdens outweigh the benefits, the law is then unconstitutional.”
“Well, by that rubric,” Aden said, “you can then reconsider the benefit of any law that touches abortion.”
Abortion providers, he said, are arguing that abortion-specific regulations have no benefit beyond restricting access to abortion. So abortion health-and-safety regulations, defunding abortion centers, parental notifications and disposal of fetal remains are under attack in several states.
“For them all bets are off,” he said.
The high court may have a new opportunity to revisit Hellerstedt and again shape abortion jurisprudence. The 8th Circuit Court and 5th Circuit Court have issued opinions upholding abortion facility regulations, which will provide the Supreme Court an opportunity to revisit Hellerstedt — and possibly even Roe itself.
“The first order of business for the Supreme Court is to curtail this,” Aden said.
Skepticism on Roe Reversal
But striking down Roe may be a tall order, given the narrow conservative majority and the population’s support for most legal abortion.
Linton doubted the high court is disposed to tackle Roe with a 5-4 majority. The original Roe decision was made with a 7-2 majority. Linton noted Chief Justice John Roberts is concerned about the politicization of the high court, which took a hit after the 2000 Bush v. Gore decision. Roberts also voted to rescue the Affordable Care Act. If Roberts were to join a decision overturning Roe, Linton said, he would want to be the sixth vote, not the fifth.
Provided Kavanaugh and the four conservative justices voted to overturn Roe, they would all be men. The USCCB’s Schleppenbach noted that a 6-3 decision striking down Roe would be more decisive, and stronger, if the majority included a female justice.
Tom Jipping, a senior legal fellow at the Heritage Foundation, told the Register that the chances the high court would strike down Roe are “very low.”
For one thing, it would require a specific case, most likely one that resulted in split circuit-court decisions. Even then, Jipping said, it is no sure bet the justices would agree to hear the case.
“They get 10,000 appeals a year, and they have to decide which 80 to look at,” he said.
Moreover, even if a relevant case comes before the Supreme Court, and even if a majority of justices now believe Roe was wrongly decided 45 years ago, that does not mean that a majority of judges would overturn the precedent.
“It starts with ‘Do we think the case was wrongly decided?’ — but it doesn’t end there,” he said. “There’s always the next step.”
Jipping said justices would take into account other judicial principles in revisiting a precedent, for example, “workability” — is the jurisprudence from a precedent a consistent or self-contradictory body of law?
Another factor is “reliance”: Justices may feel a case was incorrectly decided, but they may decline to disturb a precedent on which society has built its expectations.
While each justice will vary in terms of threshold in striking down precedent, Jipping said it is easier for justices to strike down legal precedents few would miss — but legal abortion is a much bigger challenge.
This is a direct problem for the pro-life movement. According to a 2018 Gallup survey on abortion, 64% of Americans oppose overturning Roe v. Wade. And 6 out of 10 Americans believe first-trimester abortion should be legal, meaning they want 89% of abortions, which take place within the first 12 weeks, to remain legally protected.
What Happens Next?
Since a clear majority of Americans favor enacting greater restrictions on abortion, while keeping Roe intact, the high court may find it easier to incrementally shape abortion jurisprudence toward Americans’ expectations.
It takes four justices on the U.S. Supreme Court to take up an appeal. AUL’s Steven Aden said the abortion-related cases the high court takes will likely be ones where four conservative justices believe they will have a majority. With Kavanaugh on the bench, he said, the four liberal justices will likely no longer risk taking up cases that would endanger abortion jurisprudence.
With Kavanaugh on the high court, Aden said, the justices now have an opportunity to finally “clean up the muck Anthony Kennedy made of abortion jurisprudence.”
Peter Jesserer Smith is a Register staff writer.