Within the past week or so, I have seen articles, analyses, and Facebook postings about Justice Anthony Kennedy's retirement. Many view Justice Kennedy's place on the Supreme Court (SCOTUS) as a way to keep the balance between conservative and liberal elements on the Court. It is widely assumed that President Trump is going to nominate someone more conservative than Justice Kennedy. Political pundits have been pontificating on what Kennedy's retirement means for a number of hot-button issues. One issue caught my eye: Roe v. Wade, the SCOTUS case that established the precedent of a right to an abortion per the Fourteenth Amendment. Normally, I don't like performing such speculation. It's not because I am incapable of making an educated guess because that is well within my capacity. I typically do not like it because, not to be too tautological, speculation is speculative. Educated guesswork is still guesswork. Nevertheless, I have heard so much clamor lately on the issue that I thought I would weigh in with the available time I have.
Before I begin, I want to say this: today's blog entry is not about whether making abortion illegal would be "good public policy." It is also not a normative discussion of whether abortion is morally or personally acceptable. I'm not looking to hash out the abortion debate here. Today, I will cover something more narrow: what will be the likely fate of this hot-button issue now that Justice Kennedy is retiring?
Although I am posting this on Monday, July 9, I am writing this on Sunday, July 8. As of July 8, President Trump had the short list narrowed to three contenders: Amy Coney Barrett, Brett Kavanaugh, and Raymond Kethledge. Looking at these contenders' records, it is likely that they will be at least as conservative, if not more so, than Justice Kennedy. Even without knowing which individual that President Trump will ultimately select, there is also the assumption that the nominee will make it past the Senate for confirmation.
General Considerations
I think there are three general reasons I am skeptical of downright reversal of Roe v. Wade. I call these "general reasons" because they can also be applied to the speculation of the fate of LGBT rights and affirmative action, as well as any other issues that could potentially be affected by Kennedy's retirement. One is that I am skeptical that the other four conservative-leaning Justices would reverse precedent that has been set. This leads into the second reason, which is that the Court has numerically had a majority of the Justices be Republican-appointed in SCOTUS for the better part of the past four-plus decades. There has been plenty of time to reverse Roe v. Wade, as well as other major Warren-era cases (e.g., Miranda, Brown) and SCOTUS has not done so. The third bit of skepticism is the assumption that the next Justice will be an activist justice with a conservative bent. Justices David Souter and Anthony Kennedy were supposed to be more conservative than they turned out to be. The past is not an indication of the future, I know, but the fact that such a precedence exists should give us at least some pause and not give into worst-case scenario thinking. That being said, let's take a look at the more issue-specific details.
Considerations Specific to Roe v. Wade
The main question being asked is whether Roe v. Wade will be overturned outright. Even assuming that SCOTUS were presented with a case that would challenge Roe v. Wade, it begs the question of what the scope of overturning Roe v. Wade would be. In the most overreaching outcome, SCOTUS could rule that the fetus is a human being with de jure constitutional rights, which would mean a de facto ban on abortion. Although possible, I do not think SCOTUS would hand out that sort of judicial fiat. Given that the Right tends to be about states rights, I would assume that the more likely outcome of overturning Roe v. Wade would be SCOTUS leaving it up to the individual states. According to the Guttmacher Institute, which is Planned Parenthood's research arm, four states have automatic bans in place in the event of Roe v. Wade being overturned; ten states have non-enforceable bans; and seven states have expressed interest in limiting abortion further upon being overturned. Since there is some overlap, the Guttmacher Institute has identified up to 17 states that could severely limit or eliminate abortion upon the reversal of Roe v. Wade. The Center for Reproductive Rights predicts that 23 states would be at "High Risk" if Roe v. Wade were overturned.
I don't rule out Roe v. Wade being overturned. At the same time, I do not consider it an inevitability because it is not the only plausible outcome. The Left-leaning Vox brought in a good analysis from ten legal experts on what is going to happen with abortion in the United States. After reading it, I think that it is more likely that Roe v. Wade will be chipped away at gradually and incrementally. As the Vox brings up in a different article, the pro-life movement has essentially taken that approach for a few years now. Since 2010, there have been 400 laws passed on the state level restricting abortion access to some capacity. Recent polling from the Kaiser Foundation also found that about two-thirds of Americans support Roe v. Wade (although on the other hand, Gallup polling from last month shows that only 28 percent of Americans support abortion in the second trimester or later). As such, I think the more probable outcome is that the pro-life movement will continue with its already-proven strategy of whittling away at Roe v. Wade instead of attacking it outright.
Postscript
I am not 100 percent certain of what the fate of Roe v. Wade will be: only time will tell. There are multiple ways that abortion laws in the United States could play out, but I think it is safe to say that Roe v. Wade is at higher risk than it has ever been. Regardless of where you sit on the abortion debate, keep your eye on what happens on the state level because that will have just as big, if not a bigger role in how abortion access in the United States plays out. Stay tuned.
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