May 29, 2019

Roe vs. the Radical Right

With the assent of Neil Gorsuch to the Supreme Court, the radical forced-birth, anti-woman right wing of the Republican Party has changed its strategy for re-criminalizing abortion in this country. No longer content to restrict abortion at the margins and with a presumptively misogynous high court in place, those zealots who would control women’s reproductive lives have decided to go for broke. They are seeking a complete reversal of Roe v. Wade.

The strategy will fail. Recently passed laws in Alabama and elsewhere are intended to outlaw abortion, either literally or effectively. In light of Roe and subsequent related decisions, these laws are clearly unconstitutional. They will be summarily struck down when challenged, and trial court decisions will be affirmed on appeal.

Rabid red-state attorneys general will, of course, appeal their cases to the Supreme Court, but the court has no obligation to hear them. I think it likely that the court will reject the appeals and allow decisions of lower courts to stand. The recently passed laws present no new issues to the court for adjudication that are not settled by Roe itself. Unless the court intends to overturn Roe, it would be a waste of time to accept an appeal only to maintain the status quo.

Undoubtedly, the current Supreme Court is a conservative court, but the justices are not above considering public opinion. Overturning Roe, although it would cheer some right-wing radicals, it not desired by most citizens even though there is broad consensus that the right to choose to have an abortion should have some reasonable limits. Moreover, in Roe, the court found a constitutional right to privacy in its decision, and, in the current climate, the court’s asserting that citizens have no such right could unleash a firestorm of protest. It is widely believed that Chief Justice Roberts is an institutionalist and would fear that overturning a longstanding decision like Roe would risk harming the court’s reputation as an impartial adjudicator of the law.

At least one recent decision suggests that the Supreme Court continues to support Roe while allowing states to enact certain abortion-related regulations. In Box v. Planned Parenthood of Indiana and Kentucky, the court allowed Indiana regulations on the disposal of fetal tissue removed in an abortion to stand, but it struck down limitations on why a woman may choose to have an abortion. In general, of course, although the Supreme Court can overturn longstanding decisions, it tends to avoid doing so except for compelling reasons. Recently appointed justices have, however, described Roe as “settled law,” though perhaps with questionable sincerity.

That said, it is hardly clear that Roe is safe long-term. Republican continue to select conservatives for judicial appointments, and those candidates have lately begun refusing to answer the question “was Brown v. Board of Education wrongly decided?” This is a scary situation. (I think the question should be about Plessy v. Ferguson or Dred Scott v. Sandford, to which a failure to answer or a positive answer should clearly be disqualifying.) Is the latest cohort of judges ready to completely overturn our body of law? Time will tell.

Meanwhile, although the high court can change its mind, for now, those who would force women to carry every pregnancy to term are going to be disappointed. Roe is not seriously challenged by the latest batch of radical state laws.

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