Roe v. Wade: Can It Get Any Worse After 2020?
COMMENTARY: For all its flaws, Roe still depends on five unelected Supreme Court justices willing to say the precedent should stand.
As Catholics face the 2020 elections, the abortion issue again raises its ugly head. This will be the 12th presidential election since Roe was handed down, and whoever is elected in 2020 may very well be president in 2023, Roe’s 50th anniversary. Will the sitting president score Roe as the civil-rights abomination it was, reading a whole class of human beings out of the Constitution, or salute Roe as a civil-rights advance?
It’s not just a question of how Jan. 22, 2023, is marked. After 12 presidential elections, Catholics are tired. Twelve presidential elections make Catholics wonder why pro-life achievements remain so tenuous and, therefore, whether they should not just acquiesce in the status quo. Can it get any worse?
Yes, it can.
It can get worse, given political alignments in both major parties and the division within parties, especially among Democrats, between their allegedly “moderate” middle and activist “socialist-leaning” left. How?
For all its flaws, Roe still depends on five unelected Supreme Court justices willing to say the precedent should stand. Because Roe is based far more on the predilections of that five-judge majority than any explicit constitutional foundation, its legal and intellectual underpinnings remain in flux. The bad thing is that five judges can always swap out a new rationale for Roe when the old one becomes untenable (as happened in Casey v. Planned Parenthood).
The good thing is that, not having settled on anything more than judicial fiat — not being anchored in any explicit constitutional text nor protected in statutory law — there is always room to challenge Roe, at least incrementally. By chipping at its edges, Roe’s whole rusty scaffolding remains threatened to exposure.
That’s why it’s important who appoints Supreme Court justices. Right now, there are four justices seemingly ready significantly to modify Roe, four clearly committed to upholding it, and a fifth who can go either way on specific issues.
While pro-life Americans may be disappointed with some of Chief Justice John Roberts’ decisions, his position at least affords some flexibility to continue eating away at Roe. A judge more ideologically committed to Roe would foreclose those opportunities.
Moreover, the average age of the justices inclined to modify Roe is about 62, and the average age of Roe’s partisans is above 74. Two pro-Roe justices (Ginsburg, Breyer) are octogenarians. Replacing any of the pro-Roe justices would at leastincrementally strengthen the court’s pro-life wing. If, however, either of the two anti-Roe septuagenarians (Thomas and Alito) were to die or retire, the court’s pro-life wing could be weakened, perhaps fatally.
But there are other ways Roe could get worse.
Because pro-abortionists also recognize the shaky judicial foundation on which Roe rests, there have been efforts to “codify,” i.e., write Roe into law. While these threats were voiced all the way back in the Clinton administration, three things kept the “Freedom of Choice Act” off the congressional agenda.
First, President Bill Clinton feigned moderation by pledging to make abortion “safe, legal and rare,” a claim that would have been questioned if abortion were ensconced in federal law. Second, national politicians had no interest in making abortion a federal political issue they have to run on or from (as opposed to punting to the Supreme Court). Third, Clinton lost political control of Congress after two years, in the debacle over Hillary-care.
As New York Gov. Andrew Cuomo showed, today’s political calculus is different. New York “codified” Roe into state law, guaranteeing abortion on demand even if Roe were overturned and the issue returned to the states. Rhode Island followed suit. Not content that the Virginia Legislature loosened abortion restrictions in 2020, there are efforts afoot in the Old Dominion to write a right to abortion into the state Constitution.
There will be a strong tug-of-war among pro-abortionists to write at least parts of Roe into federal law. Depending on the degree of political latitude, pro-abortionists think they have (and whether they control one or both houses of Congress), codification of Roe can be a “maximalist” position, an aspiration at best or a bogeyman to grease the skids for “more moderate” legislation.
Like removing the limits on Medicaid payment for abortion. The Hyde Amendment banning such payments is an annual rider to appropriations bills: It’s not permanent. It doesn’t have to be repealed. All it has to do is be rejected by one house.
Like changing the law to say that Congress wants to protect “reproductive rights” and thus require states to have to “preclear” pro-life legislation with the Justice Department, which, under a pro-abortion attorney general, could disapprove such restrictions. States that try to ban abortion for eugenic reasons (Down syndrome), the “wrong sex” (usually female), or which try to give parents a right to be notified about their minor daughter’s abortion could find themselves stymied by a hostile Justice Department.
Like overturning the Little Sisters decision by redefining not only contraception but abortion and abortion-inducing drugs as “basic health care” that all employers (and taxpayers) must subsidize as part of “standard” health insurance.
Like requiring pro-life pregnancy centers to make abortion referrals.
Like defining “health,” when applied to abortion, to mean anything that a mother and her attending physician define it to mean to justify “health-related” abortion at any stage during the nine months of pregnancy.
Like requiring medical students, as a condition for certification or student assistance, to be trained in and perform abortions.
Like requiring doctors who will not perform abortions to make referrals to those who do.
Furthermore, Congress could try to resurrect the 1972 Equal Rights Amendment, claiming it has now been “ratified” by 38 states, proclaim it part of the Constitution, and use ERA as a new textual foundation to claim the Constitution protects abortion as an essential aspect of female equality.
It’s all possible if Supreme Court justices and Congress act decidedly to push beyond Roe.
All views expressed herein by the author are his own.