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October 24, 2018

What’s Next with Roe v Wade?

In 1973 the Supreme Court acted more like a legislature than the federal court of last appeal when it declared that State laws banning abortion in the first two trimesters of privacy were unconstitutional. This decision ended an era of hypocrisy in which rich guys’ pregnant girlfriends could get abortions (often in Canada) and poor couples had shotgun weddings. Also women had very dangerous illegal abortions. Polls then indicated that Americans favored the legalization of abortion. I certainly agreed with the decision then and still strongly think that access to safe and legal abortion ought to be the law.

The problem with Roe v Wade is that it doesn’t have any firm basis in the Constitution. The Supreme Court is supposed to interpret the Constitution and law; it is not supposed to make new laws even when the need is clear and the public is in favor. Making new laws is what Congress and the states are supposed to do This isn’t just a dry legalistic argument; a Supreme Court which can promulgate what is essentially a law can also unpromulgate that law.

When there was a majority of liberal justices, conservatives thought the Supreme Court had become too important; now that there is a majority of conservative judges, liberals are very uncomfortable with the authority the court has. Both are correct. Nine unelected men and women with life tenure shouldn’t be passing laws. They shouldn’t be responding to public opinion or protests on either side of a controversy; that’s exactly why they have life tenure.

Laws are meant to be changeable. If people decide they don’t like a law Congress passes, they can vote for legislators who will repeal it. When the Supreme Court decides that this or that is constitutional or not constitutional, the decision stands unless and until some future Supreme Court reverses it. The Court is supposed to be following legal principles, not the popular will. So, by good design, there is no way to reverse a Supreme Court decision except the very lengthy processes of amending the Constitution or waiting for justices to die or retire and meanwhile electing presidents who will nominate justices who are likely to reverse the decision. These rancorous days it may also be necessary to have a president who is from the same party as the majority of the Senate in order to make any appointments.

In the context of Roe v Wade, the passion over Supreme Court nominations is understandable even though the bad faith and hypocrisy on both sides is a disgrace. Justice Scalia, who was an opponent of Roe v Wade, wrote “[B]y foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.”

The anguish has certainly been prolonged. Almost every Supreme Court appointment since that decision has been focused on how the nominee is likely to vote on a possible reversal of Roe v Wade. Various alleged (or real) character defects of the nominee are raised. Those who think the nominee is likely to do what they want on Roe v Wade disbelieve the alleged defects; the allegations are believed by those who think the nominee will vote as they would like him or her to do. Because abortion has become a partisan issue (except for New England Republicans), Supreme Court nominations have also become intensely partisan. Most senators know how they’ll vote before the hearings begin, sometimes before they know who the candidate is.

So what happens next?

Since Roe v Wade in 1973 the Court has ruled on five other abortion related cases; in two cases Roe v Wade was upheld by a slim 5-4 vote.  It is almost certain that the Court will hear more case on the issue. Even with a conservative majority which would probably have never voted for Roe v Wade, it is not certain that the Court will overturn the decision. A legal principle called stare decisis (it’s already been decided), discourages overturning past decisions. However, the Supreme Court does not have to and does not always follow stare decisis. One of its most important decisions, Brown v Board of Education of Topeka, which outlawed segregated public schools by declaring “separate but equal” an oxymoron, specifically overturned an earlier decision, Plessy v Ferguson.

If the Supremes overturn Roe v Wade, they don’t outlaw abortion, but they do allow states to do so. Some states have enacted trigger laws which would immediately take effect and ban abortion within their borders. Other states never bothered to repeal antiabortion laws from as far back as the 19th century and these would come back into effect. The situation would be cruel and chaotic, exactly what stare decisis is made to prevent.

On the other hand, if the Court affirms Roe v Wade, the controversy won’t end. Each abortion case ends in some amplification, clarification, and adjustment of the decision. The state of medical science keeps changing; there are also infinite ways states can regulate medical procedures, some of which are “impermissible” bans on abortions, others of which the Court has allowed. Since the Constitution has no guidance on these issues, the Supreme Court continues to act as a super legislature. We will continue to ignore every facet of the qualification of a Supreme Court nominee except his or her likely action on this one issues. Protests which belong in the state capitals will continue at the Supreme Court, which is supposed to ignore such things.  Crucial public policy will be made by the happenstance of who is President when a justice dies or leaves the Court.

A third possibility is that the Court overturn Roe v Wade but use stare decisis to stay its decision by not allowing any changes in state abortion law to take effect for five years. This hiatus is to assure that there is time for each state legislature to do its job in the full glare of local public opinion. No 19th century law will automatically go back in effect. Citizens will be able to pressure their legislatures to overturn triggers. Some states probably will end up banning abortion; most won’t. But the decision will be back in our hands and those of the representatives we do elect and can replace.

I’m not comfortable with any of these outcomes but think that some variant of the third possibility may be best.

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