Supreme Court: Is Roe now doomed?
Brett Kavanaugh gives the Supreme Court’s conservative wing the fifth vote it needs “to overturn Roe,” said Dylan Matthews in Vox.com. In the mild-mannered Kavanaugh, President Trump has nominated a highly confirmable justice who will help the president fulfill his campaign pledge to overturn Roe v. Wade, the 1973 decision legalizing abortion in all 50 states. A Roe reversal would mean each state could decide whether to ban abortion, and more than 20 Republican-controlled states surely would. In previous rulings and public comments, Kavanaugh has praised former Justice William Rehnquist’s dissent in Roe, stated that the court shouldn’t make “social policy,” and recently argued that the government had the right to block a pregnant, 17-year-old unauthorized immigrant from obtaining an abortion while in detention on the grounds that the government “has permissible interests in favoring fetal life.” We’re about to find out “exactly why the Right was so worked up over the court for so long,” said Paul Waldman in WashingtonPost.com. Kavanaugh’s nomination to replace swing voter Justice Anthony Kennedy means Roe is “already gone.”
Oh, “calm down,” said Kathleen Parker in The Washington Post. “Roe v. Wade isn’t going anywhere.” While still controversial, the ruling is now so entrenched in our culture that 67 percent of voters want to see it preserved. Does any justice, other than Clarence Thomas, really want to be “credited with upending settled law and causing massive societal upheaval?” As even honest pro-choicers admit, Roe invented a right that isn’t in the Constitution, said The Wall Street Journal in an editorial. But the ruling is also “45 years old and embedded in American law.” Today, pregnant women can perform abortions at home with easily obtainable medications, and trying to ban these drugs would create “an enormous social uproar.” Chief Justice John Roberts doesn’t want a major partisan backlash against his court. He and the other court conservatives may share pro-life personal views, but they are checked by the doctrine of stare decisis: Established legal precedents must be respected if at all possible.
Besides, said Carol Sanger in The New York Times, overturning Roe would be “downright dangerous for the Republican Party.” Overnight, the GOP would lose the “super fuel” that’s been driving its voters to the polls since 1973. That energy would instantly transfer to angry Democrats, especially Millennials. One thing that wouldn’t change, said Jennifer Wright in the New York Post, is the annual number of abortions in America. In nations that ban abortion outright, the abortion rate is actually higher than in nations that don’t, with desperate women risking their lives with back-alley abortionists, or grisly at-home procedures. In the pre-Roe era of 1967, the Guttmacher Institute has estimated, there were 829,000 illegal or self-induced abortions in the U.S., compared with 652,000 legal ones in 2014. Our choice, in other words, is not between abortion and no abortion. Our choice is between “a safe procedure and a dangerous one.”
Even in the unlikely circumstance that Roe is overturned, said Andrew McCarthy in NationalReview.com, the “vast majority” of states would “guarantee some degree of access to abortion.” Why? Because that’s what most voters want. The truth is that we pro-lifers can’t win this battle through the courts. If we are to convince other Americans that it’s wrong to kill unborn lives, that battle “has to be won in the culture, from the ground up.” ■