Despite Trump’s Kavanaugh Nomination, Overturning Roe Remains Difficult

Pro-life analysts are optimistic about legal gains at the state level if Kavanaugh is confirmed, but caution that it’s unlikely the 1973 Supreme Court decision would be reversed by a single action.

U.S. Supreme Court
U.S. Supreme Court (photo: Public domain)

WASHINGTON — If Brett Kavanaugh — President Donald Trump’s nominee to the Supreme Court — is confirmed, he could create a narrow first-ever majority of justices willing to restrict abortion, but the pro-life dream of completely overturning Roe v. Wade remains a long shot, analysts say.

“It’s hard to foresee a single moment when Roe could be repealed. That may or may not be possible. But in the immediate term, I can envision numerous situations where the country is taken in a more pro-life direction or where the pro-abortion legacy of Roe and its culture of death is chipped away,” said Paul Kengor, a political scientist at Grove City College and the author of several books on Ronald Reagan.

The four other justices who could comprise a pro-life majority are Samuel Alito, Clarence Thomas, Neil Gorsuch and Chief Justice John Roberts.

“I very much doubt that any member of the five justices — assuming Kavanaugh is confirmed — thinks Roe is right in the original matter,” said John McGinnis, a professor of constitutional law at the Northwestern University Pritzker School of Law in Chicago. “The question is: Should it be overruled?”

“I think the justice who will be most influential in this is Chief Justice Roberts,” McGinnis said.

Roberts, McGinnis said, is poised to become the new swing vote on the court, replacing Anthony Kennedy. Roberts has shown a willingness to break with conservatives on the court before: Most notably, in 2012, he was part of a 5-4 decision that saved the Affordable Care Act from being declared unconstitutional. Roberts reasoned that the law’s individual mandate could be upheld by thinking of its penalties as a tax.

One reason Roberts is not a reliable anti-Roe vote is that he is more concerned about protecting precedents than the other Republican appointees currently on the courts, according to McGinnis. (This doctrine is known as stare decisis, Latin for “to stand by things decided.”) Roe has been the law of the land now for almost half a century.

However, McGinnis noted that Roberts has shown a willingness to overthrow precedent when he believes the previous case was wrongly decided — that’s what he did in last month’s decision on public-sector unions, Janus v. AFSCME, which explicitly overruled Abood v. Detroit Board of Education, a Supreme Court decision dating back to 1977.


Political Factors

Many of the factors that will determine the fate of Roe, which was decided in 1973, are not strictly legal issues, analysts say.

“I think the political climate when the court deliberates overturning Roe is going to be very important,” said Clarke Forsythe, the senior counsel for Americans United for Life and author of a book on Roe, Abuse of Discretion.

If public opinion is not in favor of ending the right to abortion, that might also make Roberts a No vote on overturning. He would worry that by ruling against the public, the court might be perceived as overly political, according to Forsythe.

Roberts, according to McGinnis, wants the high court to play a less prominent role in American life than it currently does. Overturning Roe over the objections of a majority of Americans would have the opposite effect.

“He thinks that will deprive the court of its key institutional role in American life,” McGinnis said.

That means that pro-lifers have their work cut out for them, in terms of influencing public opinion, Forsythe added. “I think the burden is on the pro-life movement to keep up the political momentum in favor of life,” he said.

Besides concerns about what Roberts might do, a number of other potential hurdles stand in the way of a reversal of Roe.

Broader political dynamics could make a rejection of Roe more or less likely, Forsythe noted. For example, if the Democrats take the Senate in the midterm elections, that could make it difficult for Trump to get another nominee confirmed — preventing the formation of a super-majority of six Republican-appointed justices on the court. Trump could also lose the 2020 election to a Democrat whose nominees would reverse the current rightward shift of the court.


Unreliable Appointees?

Aside from outside political forces, there is also no certainty other Republican-appointed justices will vote in favor of overturning Roe, according to Barth Bracy, the executive director of Rhode Island Right to Life.

He cites the 1992 Supreme Court decision in Planned Parenthood v. Casey, which upheld abortion rights. Three of the justices who sided with the majority were Republican appointees whom observers had expected to vote the other way: Sandra Day O’Connor, David Souter and Anthony Kennedy. (Kennedy was the last of the three to leave: His retirement announcement at the end of June is what prompted Trump to nominate Kavanaugh.)

But the vetting process now is much better than it was a quarter of a century ago, according to Forsythe. He said it also helps to pick justices who have extensive public records, which Kavanagh has, with a dozen years on the U.S. Court of Appeals for the District of Columbia Circuit.

Kavanaugh’s record is enough for national pro-life leaders like Carol Tobias of National Right to Life and Marjorie Dannenfelser of the Susan B. Anthony List to praise his nomination. But Forsythe remains skeptical. “I don’t think anybody knows what his view of Roe is,” Forsythe said.

Forsythe noted that just two of the cases Kavanaugh has heard have any remote relation to abortion — and those only indirectly touched on the issue, according to Forsythe. In one, which concerned the contraceptive mandate for the Affordable Care Act, known as “Obamacare,” Kavanaugh dissented, arguing against its imposition. In the other, Garza v. Hargan, Kavanaugh reversed a lower court ruling and instead held that the federal government did not have to make an abortion available to an undocumented immigrant who was a minor.

During his 2006 confirmation hearing for the D.C. Circuit Court of Appeals, Kavanaugh said he would regard Roe v. Wade as a “binding precedent” when asked about how he viewed the decision. However, pro-life analysts note that lower court judges, unlike the U.S. Supreme Court itself, are obliged to regard Roe that way.


Another obstacle is the sheer difficulty of getting a case to the Supreme Court. It’s not just a matter of laboring through the U.S. district-court and appeals-court levels, according to Forsythe. “The Supreme Court is a passive institution. It has to wait for cases to bubble up,” Forsythe said.

Petitioning the high court to hear a case — after it has moved through the lower levels — is no simple matter either. The Supreme Court agrees to hear just 1% of requested cases, about 80 out of 8,000 each year, according to Forsythe.

“We’re still talking about something that’s speculative and distant, at best,” said Bracy.

Forsythe, however, remains “very confident” that Roe will one day be overturned because it remains “unsettled” in U.S. law and culture in a way that other older landmark Supreme Court cases are not. And he says it could happen in as soon as four to five years.


State Battles Key

The court might also curtail abortion rights without confronting Roe head-on. Instead, it could reinterpret the standard that Casey v. Planned Parenthood established for state abortion laws, declaring that the state could not impose an “undue burden” on a woman’s right to an abortion. A conservative-leaning court could interpret that less stringently, allowing states to pass more laws restricting abortion, McGinnis said.

Any number of state laws challenged in the lower courts could lead to a ruling that reverses Roe. A recent CNN report pinpointed a few examples: an Iowa statute that outlaws abortion if there is the presence of a fetal heartbeat; 15-week abortion prohibitions in Mississippi and Louisiana; and an Arkansas law that targets abortions that are induced by medication.

Even if Roe was overturned by the U.S. Supreme Court — incrementally or by a single new precedent-setting decision — pro-life leaders warn that fight for life would hardly be over. The end of the 1973 decision would not spell the end of abortion in America, as states would then be able to legislate individually on the matter.

If Roe were out of the picture, abortion bans would automatically set off in just four states, due to so-called “trigger laws,” according to a recent report in The Washington Post. An additional nine states have pre-Roe laws limiting abortion that would be restored. Abortion would be legal in 37 other states: Eight have laws formally protecting it; the rest are silent on the matter. “What the law doesn’t forbid is presumably allowed,” Bracy said.

Of course, in the absence of Roe, many more states would be free to step up and pass new laws restricting abortion. Earlier this month, NPR predicted that up to 22 states might do that.

But the state-level battles will be no less contentious for pro-lifers. Bracy warns that abortion-rights activists have been raising funds to wage costly legal contests in state supreme courts. Pro-lifers, he warns, could win at the Supreme Court only to lose at the state level.

The path to overturning Roe v. Wade may be unclear, but the commitment of the pro-life movement to reaching that goal is not in doubt.

Said Bracy, “I hope and pray every day Roe v. Wade is overturned.”

Register correspondent Stephen Beale writes from Providence, Rhode Island.