The Future of Roe and Obergefell

I listened to the first hour of 1A this morning, where the possible repercussions of the president’s choice for the next Supreme Court justice was discussed. As usual, opinions among the guests were mixed. One of the panelists tried to reassure listeners that, with Brett Kavanaugh on the high court, neither Roe v. Wade nor Obergefell v. Hodges was likely to be overturned.

I would like to be comforted by this assertion, but, alas, I am not. The Supreme Court could decide that either of these cases was wrongly decided.

I won’t claim the title of prognosticator, but I suspect that Obergefell v. Hodges is indeed safe. It has created facts on the ground that cannot easily be dispensed with. Would the Supreme Court dare to un-marry gay couples or upend the plans of engaged couples eagerly awaiting their nuptials? Overturning Obergefell would create a citizen backlash that could severely damage the reputation of the court. That won’t happen.

On the other hand, even though the right to obtain an abortion continues to be supported by most Americans, I believe that the ascent of Kavanaugh endangers Roe. That decision, too, created facts on the ground, but those facts are invisible. One cannot tell by looking at an adult female whether or not she has had one or more abortions. Even if abortion were totally outlawed—not a likely outcome even if Roe is eviscerated—there is nothing for the court to undo. What is past is past, and those who have benefited from Roe cannot have that benefit taken away from them. The Supreme Court can repudiate Roe without the disruption of society that would be caused by doing the same to Obergefell.  There would be protests, of course, but they would likely be of no effect. A product of The Federalist Society such as Brett Kavanaugh would be overjoyed at the opportunity to overturn Roe, and we should not overlook that fact.

Although it is unlikely, Democrats might be able to delay confirmation of Kavanaugh, take back control of the Senate in November, and block any Trump Supreme Court nomination other than that of Merrick Garland. That would be a great outcome, but certainly not one to be counted on.

As a practical matter, as I argued in an earlier post, the greatest defense against attempts to strip away the right to an abortion is having large numbers of women admitting to having had abortions and being glad that they did so. Additionally, it would be helpful for older women to come forward who suffered from pre-Roe back-alley abortions, telling their stories of trauma and, in some case, loss of fertility. We also need to hear from family members who lost loved ones through back-alley abortions or whose loved ones wanted but could not obtain an abortion and died from complications of childbirth.

Not respecting the choices of women must be as unacceptable as sexual harassment and rape.