A new judge on the supreme court? Expect a fight. With senior Justice Kennedy retiring and the young Judge Kavanaugh poised to replace him, Republicans and conservatives are eagerly licking their lips while Democrats and progressives are angrily frothing at the mouth. Every constitutionally questionable SCOTUS decision for the last 50 years could be on the chopping block. And no decision has been more questioned than Roe v. Wade (1973). We are left to ask: will Roe v. Wade be overturned? And even if it were overturned, would it even matter?
Roe v. Wade has been well-fortified over the years, directly and indirectly, upheld through several key decisions. Justice Kennedy had no part in the original 1973 RvW decision. He was a Reagan appointee in 1988, 15 years later. He was the swing vote banning partial-birth abortion (Gonzalez v. Carhart, 2007). On the other hand, he also favored gay marriage in the Obergfell decision (2015). When facing a chance to reverse the pro-choice tide, he tipped to the left in the fateful Casey decision (1992), reinforcing abortion-choice under the due process clause of the 14th amendment. Kennedy was never as pro-choice as some of his peers like Ginsberg or Kagan but he was never as reliably pro-life as Thomas or Scalia. He has been a pro-choice social moderate content to treat abortion is a constitutional right.
With Kennedy gone, his senior influence in SCOTUS is gone too. Justice Ginsberg would be the senior in court. But Justice John Roberts, a somewhat moderate Bush appointee, is the chief justice. There really would be a 5-4 shift towards a conservative court. And Roberts would be the swing vote in split cases. If RvW were overturned, it would probably be a split decision, 5-4 or 6-3. So one maybe two justices would make the difference.
It’s hard to tell, however, if the stars will align for overturning Roe v. Wade. A few other things would have to happen first, before any SCOTUS ruling.
(1) Trump’s appointee, likely Justice Cavanaugh, must be a genuine social conservative, preferably a constitutionalist. His record looks promising, but looks can be deceiving and people can change over time.
(2) A challenge-case (contrary to RvW) has to survive all the lower courts and rise to the supreme court.
(3) That case must be pure enough to where it can’t be dismissed or declined over extraneous issues.
(4) The case is so carefully aimed that there are no escape routes, no tertium quid, in the verdict. It must force an explicit question on whether RvW should be overturned.
(5) The social dynamics among the nine supreme court justices need to be cohesive enough to where they can reach a decision without unspoken and subjective factors between them swinging the critical vote the wrong way.
(6) Dark forces (lobbyists, bribes, threats, Russian spies, scandals) have to stay away long enough for SCOTUS to reach a verdict without coercion from outside influences.
The prospect of overturning RvW would also improve if no other pressing cases crowd out the SCOTUS docket, forcing indefinite delay on the abortion case. Plus, it would help a lot if the social weather settled down long enough for SCOTUS to reach a decision without overwhelming pressure to conform to a popular progressive narrative, as was the case with the Obergfell decision. Many progressives like to narrate history before it happens: “Don’t be on the wrong side of history! Love is love! This is a historic decision!” and so on. In that way, the abortion issue has been cast as women’s liberty, anti-slavery, women’s rights, equality, empowerment and all sorts of positive concepts that no blue-blooded American could object too. Of course, rhetoric is one thing and facts are another. But we shouldn’t underestimate the power of the political left to influence judicial opinion, by directing the social weather with triggering news stories, coordinated headlines, social media campaigns, riots in the streets, and organized protests complete with pre-printed signs, vulgar hats, and free busing for protestors.
The biggest obstacle to overturning RvW, however, is that SCOTUS has always leaned in favor of past decisions. Case law builds on case law. Lower courts can make a field day out of overturning rulings. But SCOTUS typically upholds past decisions by SCOTUS. There are cases where past decisions were overturned but those are few and far between.
RvW, however, may be one of those exceptions. The Roe v. Wade decision seems to cram the moral equivalent of a camel through the eye of a constitutional needle: the due process clause and the implied right of privacy. Our founding fathers could not have possibly intended, and would not likely have permitted, interpreting the rights of life and liberty as somehow including the privilege to kill innocent, non-threatening, non-combatant, children-in-utero. Those same fathers also wrote “all [humans] are created equal . . . endowed by their creator with . . . life, liberty, and the pursuit of happiness.” In the 18th century, they didn’t know when exactly new human life was created. We know now. Biological life begins at conception. If we are equal from the moment of creation, we are all equally endowed with basic human rights from conception onward.
Justice Blackmun, writing the RvW majority decision neatly avoided admitting the biological humanity of the fetus. He called it a “potential human.” With this term-shift, he blurred the human part of the human fetus and forestalled any judicial ground for fetal personhood. We’ve been arguing over “personhood” ever since. Scientifically, however, this move was outdated when Blackmun was writing, and it’s even more outdated now. There is no scientific question for the last 50 years about whether distinct biological human life begins at conception. Justice Blackmun should have known this.
RvW is constitutionally unsound, scientifically ill-informed, and we can add, it’s been socially disastrous. We’ve seen 60 million plus abortions since RvW. Pretty much every measure of social health for mothers has declined since 1973, with higher divorce rates, higher domestic abuse rates, and more single mothers, and countless cases of “love em and leave em” heartbreaks. And that’s not including the rate of injury and side-effects from abortion, or the rates of PTSD, depression, trauma and social problems that follow.
The stars haven’t aligned just yet, but they are getting close. The conditions may be right for overturning RvW, but even if it were overturned we still have to wonder, what difference would it make?
If RvW were overturned, every state would be left to reevaluate where they stand on abortion, most of them reverting to some combination of standards from 1972 forward. Red states, generally speaking, would expand and reinforce a pro-life position. Many blue states would already have laws in place for “exceptional” cases, such as rape abortions, medically dangerous abortions, eugenic abortions and fetal euthanasia, and they would likely use whatever latitude they have to reestablish abortion-on-demand. Purple states like Florida and Ohio would have a battle on their hands, a battle for the soul of their state.
Furthermore, the country itself would face a sort of identity crisis. RvW allied the US, sentimentally, with other pro-choice nations, which is to say, most every first-world countries. The Universal Declaration of Human Rights likewise names abortion among the rights of humane and civilized societies. If USAmerica were to fortify the rights of the unborn, we’d be like a teen mother who abandons her peer group so she can raise her child – alone. We don’t even have Ireland anymore to help babysit. Historically speaking, the United States is a teenager compared to the elder nations in Europe and Asia. Overturning abortion-choice policy would tell the pro-choice world: “You’re a bad influence on me.” That audacity, undoubtedly, would make progressives wince and conservatives cheer. America’s greatness was never anchored in our similarity with Europe but in our difference.
Roe v. Wade may or may not be overturned. But if it did flip we would have many more battles ahead fighting to fully and finally secure the right of life not because it’s popular but because it’s right.