Since Justice Kennedy announced his retirement, one of the primary concerns expressed by those on the Left has been the possibility that Roe v. Wade will get overturned by a conservative majority on the Supreme Court. It is often a fruitless endeavor to forecast the Court’s future decisions, especially when our politicians are scrambling to find somebody to fill an empty seat. Nevertheless, if President Trump and the Republicans in the Senate are able to nominate and confirm an originalist, it is certainly not inconceivable that Roe gets re-evaluated.
But let’s be clear about two things: much needs to happen in order for the Supreme Court to make this decision, and, even if it did, such a ruling would not single-handedly mark the end of abortion in America.
Before the Court can rule on Roe a long series of legal occurrences will need to take place. First, a case must arise at the that specifically applies to a legal question involving abortion; then, this case must either be directly within the Court’s jurisdiction or it must actually make its way through our federal courts in a manner that best positions the Court to create fundamental alterations to the precedent that was created by Roe. Even if both of these things were to occur, then, depending on the ruling, our federalist system would still enable Roe’s precedent to persist at the state level. This last point seems to have been lost in the recent apocalyptic commentary on Kennedy’s empty seat.
While the Supreme Court is the ultimate federal court, it can not alter rights exclusively established by the states that do not run in contradiction with federal law.
Because of this quality of our federalist system, there is a major difference between overturning Roe and finding abortion unconstitutional. The latter would make the procedure illegal throughout the country and could only be reversed by an amendment to the Constitution. However, the former would send the question of abortion back to the states if Congress did not issue its own legislation on the matter.
How States Could Protect Abortion On Their Own
To be clear, sending the question of abortion back to the states could itself mean one of two things. It could mean that states propose the acceptance of abortion as a ballot question for the people to directly decide, or state legislators and governors could pass laws legalizing it and regulating it appropriately. Those who are pro-abortion naturally react to this scenario with concern over the political reality that many states, predominately Republican majority states, would neither be able nor willing to protect a woman’s ability to get an abortion. However, state legislation is not the only path forward for abortion advocates to protect this procedure if the question were left to state discretion.
The Supreme Court is not the only supreme court in our country.
The current “right abortion” originated from the Supreme Court’s interpretation of the 14th Amendment’s Due Process Clause. If the Court were to reverse this previous interpretation, the ability to get an abortion could still be determined by state supreme courts to be a protected right under respective state constitutions. Like rights protected by the Supreme Court, such decisions could only be undone at the state level through amendments to the state constitution.
To those who doubt the idea that state level judicial actions like this could take place, I would recommend reading a decision that was made on June 29th by the Supreme Court of Iowa, a state which substantially swung in favor of Donald Trump in the 2016 election.
Planned Parenthood of the Heartland v. Reynolds
In 2017, Iowa’s state legislature passed new requirements for physicians performing abortions, one of which put in place “a mandatory 72-hour waiting period between informational and procedure appointments” and another made it illegal to perform “an abortion upon the twentieth week of pregnancy.”
Within hours of the Governor signing these requirements into law, Planned Parenthood of the Heartland (PPH) sought to stop the state’s enforcement of these requirements through court action. PPH alleged that these new regulations unconstitutionally constrained abortion rights as promised by the state’s constitution.
Within a short period of time, a trial ensued. Last week, a final decision was rendered.
In a 67 page opinion, the majority of Iowa’s Supreme Court ruled that the abortion regulations in question were violative of the Iowa Constitution’s due process and equal protection provisions. Ruling that abortion is a fundamental right under the state’s constitution, the judges ruled that the requirements established by the state legislature were not narrowly tailored enough to fulfill the compelling interest involved in the case (informing women about abortion). The rational of the decision could be summarized in the following excerpt:
Autonomy and dominion over one’s body go to the very heart of what it means to be free. At stake in this case is the right to shape, for oneself, without unwarranted governmental intrusion, one’s own identity, destiny, and place in the world. Nothing could be more fundamental to the notion of liberty. We therefore hold, under the Iowa Constitution, that implicit in the concept of ordered liberty is the ability to decide whether to continue or terminate a pregnancy.
… So What?
Overturning Roe v. Wade would of course be a decision with major implications if it were ever done by the Supreme Court. However, the certainty of the Court rendering such a decision in the near future is far from complete.
One thing, however, is fully certain.
Abortion was constitutionally protected at the federal level because of the decisions made by the Supreme Court. Even if Roe were overturned, it’s precedent could be, and has already started to become, constitutionally protected at the state level because of the actions taken by supreme courts.
The point of this article is not to provide or suggest my own opinion on abortion (which I do have) or my opinions on judicial activism (which I definitely have), rather it is to remind everybody of what they already should know. America’s system of government is incredibly dynamic. There are a variety of ways for people to repeal the rights that they loath and a variety of ways for people to protect the rights that they care about. Using our country’s courts is one option among many for achieving both of these objectives.
There are of course many other options. Keep in mind, if the Supreme Court overturned Roe AND Congress passed a federal prohibition of abortion, the Executive Branch would still have to enforce this prohibition effectively, the same Executive Branch that is to this day tasked with enforcing laws that make any use or possession of the marijuana illegal.
How well has that been working?
In the end, the strength of every law relies upon more than mere judicial interpretation; like everything involving our government, politics and activism play a decisive role as well. The current debate over abortion’s fate in the country, no matter what politicians say on national television about filling Justice Kennedy’s seat, is no different.