With Amy Coney Barrett whisked onto the Supreme Court – by a Senate that can’t seem to accomplish much of anything else – virtually everyone believes that Roe v. Wade is toast. But if the new Court does over-rule its 1973 decision that established a Constitutional right to abortion, will it really matter?
Well, yes. Virtually every woman I know will consider it a slap in the face, a big step backward for women’s rights. Of course, it would be. (Others would see it as a big step forward for fetal rights. No, the Court hasn’t found fetal rights in the Constitution . . . yet.) But how much practical difference would it make? That depends on your zip code.
In a recent Sunday New York Times op-ed, UC Hastings law professor Joan C. Williams quoted a friend who says people should give up on Roe. Without Roe, women in many states will have no access to legal abortion, but with Roe, they have virtually no access to legal abortion right now. In terms of facts on the ground, that basic premise is hard to argue with. States have been chipping away at Roe for the past 47 years, and recently, some have been flaunting their defiance of the Supreme Court’s ruling, inviting the new Court to change its mind.
Not that the Court has ever recognized an unrestricted right to abortion. Roe didn’t create a blanket right. It recognized a state interest in the health of the woman and potential life of the fetus. The earlier in pregnancy, the less either of those interests justified restriction. Conversely, the later in pregnancy, the more restrictive state law could be.
And Roe didn’t establish an affirmative right. The federal government doesn’t pay for abortion unless the pregnancy has been caused by rape or incest or the woman’s life is at risk. The 1976 Hyde amendment forbids federal payment, and Congress has kept renewing the amendment every year. Repealing Roe won’t cut off federal funding; there isn’t any.
In 2017, “89 percent of U.S. counties did not have a clinic facility that provided abortion care, and 38 percent of women aged 15–44 lived in these counties,” according to a Guttmacher Institute report published in September by Rachel K. Jones, Elizabeth Witwer, and Jenna Jerman . (They also found that 39 percent of 2017 abortions were induced by medication.)
Leaving it up to the states would, of course, be nothing new. That’s the way it was before Roe. Arguably, that’s the way it should have stayed. In a 1992 law review article – written when she was a circuit court judge, published when she was a Supreme Court justice – Ruth Bader Ginsberg wrote that maybe Roe had done everyone a disservice by taking abortion totally away from control of the states, many of which (like Washington state) were already changing their laws. Defying the states fueled the emotional backlash that seems on the verge of triumph today. (If you knew where to go, even in states that banned it, you could get a medical abortion in the years before Roe, but the doctor might risk prison. And if you earned minimum wage, the procedure might cost you three months’ pay.)
“Whether or not R.B.G.’s assessment of Roe was correct,” Williams writes, “the best tribute we can pay to her is to do what she suggests: open up the kind of dialogue that occurred in Ireland, where young people knocked on grannies’ doors and persuaded them to vote to legalize abortion.”
What if Roe Fell, a recent study by the national Center for Reproductive Rights, finds that “if the Supreme Court were to limit or overturn Roe, abortion would remain legal in 21 states and likely would be prohibited in 24 states and three territories.“ The states without legal abortion would be concentrated in the South and Midwest. Those states would become “abortion deserts.” Millions of women who lived there “would be forced to travel to receive legal care, which would result in many people simply being unable to access abortion.” To achieve this, “the Supreme Court does not need to overturn Roe.” Merely “[a]llowing states to increase enforcement of abortion restrictions that have no proven medical benefits will result in access being further decreased or essentially prohibited.” The Center concluded that seven states, including Washington and its West Coast neighbors Oregon and California, would continue to offer “expanded rights.”
Even in states that would become abortion “wastelands,” Anna North wrote recently in Vox, women would still have some options. “Abortion funds around the country would continue their work, in some cases helping patients travel to blue states to get the procedure.” Wolfe observes. “Community-based providers, who perform abortions outside the official medical system, would likely continue to operate. And self-managed abortion, in which people perform their own abortions with pills, would take a bigger role.” Besides, she pointed out, “people have been ending their pregnancies in America since long before Roe v. Wade or even abortion clinics existed, and a court decision isn’t going to stop them. It’s just going to change what their options — and the risks involved — look like.”
In heavily-Catholic and increasingly right-wing Poland – where its constitutional court just ruled that abortions done to avoid the birth of a fetus with physical or mental abnormalities violated the constitution – legal abortions represent only one percent of the estimated 200,000 total abortions performed there each year. Poland is one of only three European countries to sign a recent international statement against abortion. Without much local notice – or any action by Congress – the Trump administration has joined about 30 other governments in a declaration affirming women’s rights but opposing abortion. The Guardian noted that “[m]ost of the signatories are among the 20 worst countries to be a woman according to an index established by Georgetown University.”
Washington was one of many states that permitted abortion before Roe. Fifteen other state legislatures had approved the procedure by the fall of 1970, when Washington voters established it by passing Referendum 20. Washington was the first and only state to legalize abortion by a vote of the people. In 1991, state voters narrowly passed Initiative 120, which repealed the old law and stated that “every individual possesses a fundamental right of privacy with respect to personal reproductive decisions.” The new law removed restrictions to bring state law into line with Roe. and went beyond that to, among other things, require public hospitals that offer maternity benefits, services, or information to also offer benefits, services, and information about abortion. (Two years ago, the state legislature passed a bill requiring insurance companies that provide maternity coverage to provide abortion coverage, too.)
When Skagit county’s public hospital district ignored that requirement, a superior court slapped it down. The hospital district argued basically that it couldn’t find providers who would perform abortions, so what could you expect it to do? Judge Raquel Montoya-Lewis gave that short shrift: “In effect,” she wrote, “the Hospital District shrugs its shoulders and tells patients they will have to find that aspect of their healthcare elsewhere.” That wasn’t good enough because “compliance with the [Reproductive Privacy Act] is not aspirational.”
A 2018 Seattle Times report by Megan Burbank was headlined “How Washington state made its abortion laws Trump-proof.” Trump-proof, yes, but maybe not Supreme-Court-proof. And not proof against health care system mergers that have squeezed the number of private hospitals willing to perform abortions.
In Washington, the loss of Roe will probably have less impact than the hospital mergers that have placed a number of major Seattle and state medical centers under control of Catholic health-care organizations – in which, following church doctrine, abortions are not performed.
When in July Virginia Mason announced a planned merger with CHI Franciscan Health Care, a coalition of Seattle groups, including NARAL (the National Abortion Rights League) and the ACLU of Washington, objected, arguing that “[i]f the proposed merger moves forward, Virginia Mason will deny patients access to certain reproductive and end-of-life care options at their facilities.” Leah Rutman, Health Care and Liberty Counsel for the ACLU of Washington, argued that “this is not the first move of this kind, nor is it likely to be the last. Washington state is a growing epicenter of religious-secular health system affiliations. In 2010, 26 percent of the state’s hospital beds were in religious or religiously affiliated health systems. With this merger, that number would rise to above 50 percent.”
Will Barrett’s presence on the court doom Roe? Maybe not, but that’s clearly the idea behind putting her there – that and, perhaps, a chance to steal the Presidential election.
Is it unfair – is it merely Catholic-bashing – to assume that Barrett’s faith will influence her vote? Not at all. Barrett can say all she wants about separating her Catholic doctrine from her professional judgment, but people who have backed her for the Court seat have obviously thought – or hoped – that there would be no daylight between the two. How else to explain the statement by Senate Judiciary Committee chair Lindsey Graham celebrating “the first time in American history that we’ve nominated a woman who is unashamedly pro-life and embraces her faith?” Who’s kidding whom?
If the new Court dumps Roe, will the abortion issue fade away? Not likely. The next logical step would be a push to establish personhood for fetuses. Sound far-fetched? Not at all. Seven years ago, Lynn Paltrow, of National Advocates for Pregnant Women told NPR’s “Fresh Air” about “post-Roe v. Wade anti-abortion statutes that make declarations of separate rights for fertilized eggs, embryos and fetuses.” She explained that the “personhood movement is working to have fertilized eggs, embryos, and fetuses recognized as completely separate constitutional persons under the law. It’s . . . 40 years of efforts by a variety of organizations who seek to recriminalize abortion.”
One rationale is that women who want to abort aren’t the only ones who deserve 14th-Amendment protection. “You know,” Jennifer Mason, of Personhood USA told “Fresh Air,” “the 14th Amendment requires equal protection under the law for everybody, and so we believe that every human being, regardless of their location, whether they’re in the womb or out of it, deserves those protections and those rights.”
If you decide a fetus is a full-fledged person under the Constitution (and, presumably, that life begins at conception), then any form of abortion will violate its constitutional rights, and state laws that permit abortion will be unconstitutional. Is this likely? Who knows. It’s certainly an idea that some groups will keep pushing. If they succeed, then even in bright blue Washington, legal abortion will be a thing of the past. Checkmate.
If Roe doesn’t survive the new Court, we’ll have the irony of a conservative court overturning long-established precedent. Whatever happened to stare decisis, the practice of letting past precedent – like it or not – guide current decisions? A court that strays from that principle may be guilty of — my goodness! — judicial activism. Well, yes. Of course, there are some long-established precedents that deserve to be obliterated. The classic example is the “separate but equal doctrine” that the Supreme Court enshrined in the 1892 case of Plessy v. Ferguson – and didn’t scrap until 1954, when the Brown court decided separate educational systems were inherently unequal.
But still, make no mistake, the conservatives on this court – at least some of them – really don’t care about precedents with which they disagree. Why else would four of them have voted, just this June, to uphold a Louisiana law virtually identical to a Texas abortion-restriction case that the court had ruled just four years earlier – pre-Gorsuch and Kavanaugh – was unconstitutional? And why did the 5th Circuit, which is supposed to follow Supreme Court precedent, say the law was constitutional to begin with? The pre-Barrett court, with Chief Justice John Roberts citing stare decisis as the reason he cast the deciding vote, ruled against Louisiana, too, but that’s not the point.
In the Supreme Court’s 1992 Casey decision, upholding Roe, Justice Sandra Day O’Connor wrote for a plurality that “the Court could not pretend to be reexamining Roe with any justification beyond a present doctrinal disposition to come out differently from the Roe Court. That is an inadequate basis for overruling a prior case. Overruling Roe‘s central holding would not only reach an unjustifiable result under stare decisis principles, but would seriously weaken the Court’s capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law.. . . Only the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure and an unjustified repudiation of the principle on which the Court staked its authority in the first instance. Moreover, the country’s loss of confidence in the Judiciary would be underscored. . . A decision to overrule Roe‘s essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court’s legitimacy and to the Nation’s commitment to the rule of law.”
Amen. Chief Justice Roberts may care about such things. How many of his colleagues share his concern?