In the first hours after Justice Anthony M. Kennedy announced on Wednesday that he was retiring from the Supreme Court, the politicians, the pundits and news reporters quickly settled on what they think will be the key issue when a predicted fight unfolds in the Senate over his successor.
The consensus: it will be about the chance that Roe v. Wade would now be overruled by a solid new conservative majority. After all, the observers recalled, President Trump as a candidate and in office had said repeatedly that he would only pick nominees to the Court who would vote to cast aside that 1973 decision, which originally recognized a woman’s constitutional right to end a pregnancy.
That, it seems, will be an issue not only in the Senate but also in the political campaigning this year leading to the November mid-term elections. Public talk about the future of abortion rights may well increase voter turnout among voters of both major political parties.
This is likely to be the question often raised: “Will the Court overrule Roe v. Wade?” That is pretty close to the actual question that lawyers for abortion-rights advocates put to the Supreme Court in 1992, when the Justices issued their most important ruling on abortion after the basic 1973 ruling. Here is how the question was put: “Has the Supreme Court overruled Roe v. Wade, holding that a woman has a right to choose abortion, as a fundamental right under protected by the Constitution?”
The women’s rights lawyer who wrote the question that way, Kathryn Kolbert of the American Civil Liberties Union, told the press at that time that she worded the issue to test the Justices’ reaction to arguments then being made that the Court had already undercut Roe’s meaning. She also confessed to a political motive: 1992 was an election year, and she expected that abortion would be an issue in the campaign and she wanted her core question answered before the voters went to the polls.
In granting review, the Court actually ignored the question as Kolbert had written it, and substituted a series of questions about the actual restrictions on abortion rights that the Pennsylvania legislature had enacted.
And at least some of the Justices were uncomfortable when Kolbert opened her argument with an emphasis on the status of Roe as a precedent. Justice Sandra Day O’Connor soon interrupted, saying: “Ms. Kolbert, you’re arguing the case as though all we have before us is whether to apply stare decisis [respect for precedent] and preserve Roe in all its aspects.” She suggested that the lawyer move on to deal with the questions as posed by the Court, and Kolbert soon did.
But when the decision finally emerged in late June 1992 in Planned Parenthood of Southeastern Pennsylvania v. Casey, Kolbert’s strategy had worked. The main opinion began this way: “Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding that the Constitution protects a woman’s right to terminate her pregnancy in the early stages, Roe v. Wade, that definition of liberty is still questioned. Joining [Pennsylvania state officials], the United States [government], as it has done in five other cases in the last decade, again asks us to overrule Roe.”
Mostly clearing up that doubt, the Court reaffirmed what it called the “essential holding” of Roe: first, that the woman has the right to choose to have an abortion before the fetus was capable of living outside the woman’s body [at “viability”] without undue interference by the government; second, a recognition of the government’s power to restrict abortions after viability if abortions were still allowed to protect the woman’s life or health, and, third, a recognition of the power of the government to protect throughout pregnancy the health of the woman and of the fetus.
That is still the definition of where abortion rights stand; the Court has never modified that recitation in any case in the 26 years since Casey was decided. Justice Kennedy was one of three Justices then on the Court (the others were O’Connor and David H. Souter) who combined to write that main opinion supporting the 5-to-4 outcome. (The only Justice still serving on the Court who took part is Clarence Thomas, who dissented.)
That decision upheld the Pennsylvania law’s regulations of abortion, under the three-step standard, except for one provision requiring a woman to notify her husband of her plan to have an abortion.
However, much of the majority had hoped that it had settled the status of abortion rights, legislatures across the country have tried many times each year since then to write new abortion-restricting laws, sometimes seeking to fit them within the three-part “essential holding” of Roe and Casey, but sometimes passing laws that would fail that test in hopes of creating test cases that might lead the Court to overrule Roe.
Here are some of the attempted measures:
- Attempts to define “viability” as earlier in pregnancy (at the time of Casey it was understood to be at about 24 weeks). Some laws have tried to put that point at 22 weeks, or earlier, claiming that fetal development is changing over time.
- Attempts to apply the third step on state power to protect fetal life to justify laws that would forbid abortions at the point in pregnancy when a doctor can detect the sound of a fetal heartbeat (generally understood to be at about six weeks).
The outright attempts to test the Court’s continued adherence to basic abortion precedents have come in laws that seek to ban abortion at 12 weeks or 20 weeks, with lawmakers fully aware that those would fail the existing constitutional test.
The only time that the Court has given lawmakers the power to impose a significant restriction on the right to abortion itself is when it upheld a federal law banning a late-in-pregnancy procedure known as “partial-birth abortion.” Justice Kennedy wrote that opinion, finding it to be within the existing framework.
The Court has often allowed legislatures to impose waiting periods, such as two or three days, before abortions could be performed, and to impose parental notice requirements for teenagers seeking abortions. The Court, however, has not upheld laws that it found to so rigorously regulate the practice of abortion doctors or abortion clinics that the practical effect is to put abortion out of reach for women. Justice Kennedy helped make a 5-to-3 majority in 2016 that struck down such restrictions enacted in Texas.
If Justice Kennedy is now replaced by a more conservative Justice, one who is inclined to question the existing abortion precedents, the Court might begin to look more approvingly upon some of the legislation that seeks not to end abortion rights outright, but to regulate them in new and more stringent ways to at least reduce the numbers performed.
It could be that a future Court would be willing to re-think the question of fetal viability as the point at which more state controls may be applied.
But, because abortion rights have existed now for 45 years, since Roe, many women in the nation have come to rely upon those rights to help them control their lives and their livelihoods, and such “reliance factors” are often considered by the Justices as a reason not to overrule a long-standing precedent. Those factors, however, might not be persuasive to a Justice who holds the view that Roe was wrong in the beginning, remains today a flawed interpretation, and actually has proved unworkable because the legal rules have grown so complex.
The coming debate in the Senate over a new Trump nominee to the Court, and the political debate between now and the November elections, are not likely to focus on the details of abortion-rights law as it exists today so much as on the basic question of whether such rights should now exist at all or at least should be significantly curtailed.
Legendary journalist Lyle Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.