AMERICAN pro-life activists are excited that the Supreme Court may at last overturn the right to abortion that Justice Harry Blackmun claimed to find in the ‘penumbra’ of the constitution in 1973.
The pro- and anti-abortion war has divided America ever since, much more than any other contentious social issue such as gay rights and the death penalty.
Roe v Wade, as the right to abortion law is called, was passed when liberals had a majority on the court. It is now dominated 6-3 by conservatives who believe in interpreting the constitution as it was written, minus the penumbra or thin air.
The court heard arguments last week for and against the narrower question of the constitutionality of restrictions on abortion in the state of Mississippi. It will announce its ruling next June. If Mississippi wins, both liberals and conservatives believe it will quickly doom Roe v Wade itself.
Panicked liberals are warning of the end of the republic – at least – if Roe is lost. What will actually happen is that abortion law returns to the states or to the congress and to the will of their electorates.
What made conservatives confident they will prevail in their struggle against Roe after so many failed attempts was the tenor of the questions the justices put to both sides. The issue for the court’s conservatives is not whether abortion is good or bad but the constitutionality of the federal law that Blackmun magicked into being.
When the court previously refused to interfere with Roe v Wade, the late conservative Justice Antonin Scalia said that it was ‘foreclosing all democratic outlet for the deep passions this issue arouses by banishing [it] from the political forum that gives all the participants, even the losers, the satisfaction of a fair hearing and an honest fight by continuing the imposition of rigid national rule instead of allowing for regional differences’.
In contrast to Scalia, liberal Justice Sonia Sotomayor warned that by rejecting abortion law as it stands, the court could destroy its own legitimacy which has been under attack by Democrats since conservatives gained their majority under Donald Trump’s presidency. They have gone as far as threatening to pack the court with liberals to outvote the constitutionalists.
‘Will this institution survive the stench that this creates in the public perception that the constitution and its reading are just political acts?’ asked Sotomayor, a Catholic. ‘I don’t see how it is possible.’
The same could be said of the liberals’ 1972 law passed over conservative objections at a time when even conservative justices were reluctant to overturn precedents they disliked. Respect for precedent was one of the reasons cited by Sotomayor and her liberal colleague Stephen Breyer for doing nothing again. Meanwhile, she herself recently stepped into political controversy by urging students to fight anti-abortion laws.
The Mississippi law restricts abortion in most cases after the 15th week of pregnancy. Some liberals believe the killing of babies should be allowed up to the time of birth or, among the more extreme of them, after birth. The federal law has undergone some changes over the years but still prohibits states from placing ‘undue burdens’ on abortion rights.
Roe is opposed by several conservative states that have passed laws to limit its scope which are fought through the courts by women’s organisations such as Planned Parenthood, a national abortion provider partly funded by the federal government. The Mississippi case was brought in the name of the Jackson Women’s Health Organisation.
Last May, Texas Governor Greg Abbott signed a so-called ‘heartbeat’ law which bars most abortions in the state once a foetal heartbeat has been detected. He told the state legislature: ‘Our creator endowed us with the right to life yet millions of children lose their right to life every year because of abortion.’
Attorney General Merrick Garland and abortion providers have both asked the Supreme Court to overrule the Texas law, which opponents say could be applied as early as the sixth week of pregnancy.
Roe supporters are counting on the support of Chief Justice John Roberts, who is a nominal conservative and a Catholic, to vote down the Mississippi law and to persuade at least one other conservative to join him.
Roberts is less of a constitutional purist than some of the other conservatives and is alive to the danger of court decisions making powerful political enemies in Congress. Overturning Roe could spur the Democrats, for whom the legality of abortion is a red line, into an effort to pack the court.
It was Roberts’s vote in 2012 which ensured that Obamacare survived a challenge to the Supreme Court when he ruled that the mandate to buy health insurance was really a tax which the government was entitled to impose although President Obama’s law specifically described it as a mandate during its passage. Conservatives have distrusted him since.