Understanding an Alliance: Part 3

 

IV. From the Jaws of Victory

The pro-life cause won a significant victory in Webster v. Reproductive Health Services (1989). The court was answering the question about how comprehensive Roe v. Wade’s ban on abortion legislation was. Since the 1980s, in tension with Roe, some states had been limiting the use of government funds, facilities, and employees to perform or assist with abortions. Webster allowed for states to legislate in this area, effectively allowing states to restrict abortion. But it did not seek to address the constitutionality of Roe v. Wade. For Scalia, the decision did not go far enough: he wrote an independent concurrence admonishing the court for not handling that issue outright, arguing it would only arise again.

He was right. In 1992 came Planned Parenthood v. Casey. The case involved a challenge to several different restrictions the state of Pennsylvania had placed on abortion: a twenty-four hour waiting period, provision of information about alternatives to abortion, and requiring a married woman seeking an abortion to notify her husband. Only two judges, Blackmun and Stevens, wanted to strike these restrictions down entirely, showing how far the court had improved since 1973. Rehnquist and White, the two dissenters in Roe v. Wade, wanted to uphold the restrictions, as did Scalia and Thomas. They were ready to overturn Roe v. Wade, leaving states free to regulate or ban abortion as they saw fit. This left O’Connor, Souter, and Kennedy. There was a great hope that all three would vote down Roe v Wade—O’Connor had famously said that the reasoning behind Roe was “on a collision course with itself.” The pro-life cause seemed on the verge of a triumph.

Despite these hopes, O’Connor, Souter, and Kennedy developed a different position. Roe would stand. But the three set aside the actual argument of Roe. Instead, they invoked the doctrine of stare decisis—the policy of adhering to judicial precedent—and argued that it compelled them to affirm Roe, whether or not the actual argument of Roe was mistaken. It was a curious argument, as many times in the history of the court, previous decisions that had been deemed incorrect were overruled.

The majority further argued that in light of the political controversy surrounding Roe v Wade, if the court were to “overrule under fire” it would damage “the people’s acceptance” of the “Court’s legitimacy.” The majority decided that abortion could be regulated as long as regulations did not place an “undue burden” on a woman seeking an abortion. In practice, states could not prohibit early-term abortions. In the end, the majority seemed most concerned with forming a political compromise that could resolve the abortion issue once and for all.

Scalia, for his part, mocked this line of reasoning. Comparing Casey to the Dred Scott decision that tried to resolve the slavery debate by finding a constitutional right to slavery, he wrote:

It is no more realistic for us in this case…to think that an issue of the sort they both involved–an issue involving life and death, freedom and subjugation–can be “speedily and finally settled” by the Supreme Court, as President James Buchanan in his inaugural address said the issue of slavery in the territories would be.

The pro-life cause came within a hair’s breath of victory in 1992, but there was no breakthrough. Moreover, 1992 saw the election of the first President dedicated to keeping abortion legal: Bill Clinton. By then, the Democratic party had already defined itself as a pro-choice party. The 1992 Democratic Convention denied the Governor of Pennsylvania, Robert P. Casey—the same Casey who was the defendant in Planned Parenthood v. Casey—the chance to speak at the Convention.

As President, Clinton wanted to choose pro-abortion Supreme Court judges. This consideration was therefore a top priority for his selection team. The 1993 hunt for a replacement for White led to Ruth Bader Ginsburg, but her appointment hit a stumbling block when the vetting committee found she had criticized Roe v. Wade. When it was revealed that she still supported a right to abortion, just on different theoretical grounds, they were relieved and went ahead with her appointment.

 

V. Casey’s Silver Lining

At the present moment, the result of the campaign to change the court has reached a drawn-out stalemate. Two camps are firmly entrenched, with one or two “swing voters.” George W. Bush and Barack Obama each chose two judges to the Supreme Court, filling vacancies for the both conservative and liberal camps. Since 1992, the court has only ruled twice on abortion, dealing with bans on partial-birth abortion. In Stenberg v. Carhart (2000), a narrow majority (5-4) struck down the ban as violating Roe v. Wade, but in Gonzales v. Carhart (2007) another narrow majority (5-4) upheld a different federal law banning partial-birth abortion.

Nevertheless, Casey was not a total defeat. O’Connor, Souter, and Kennedy were sympathetic to conservative jurisprudence: the Supreme Court’s authority had limits. Hence, they only struck down the regulation on abortion that required spousal notification. Casey, therefore, left a considerable gap for states to regulate abortion, provided laws did not place an “undue burden” on the woman seeking an abortion. The pro-life movement has poured into the breach, advancing in state legislatures the pro-life legislation that was undone in 1973. They have made tremendous gains since 1992:

• The number of states with parental involvement laws has increased from 20 to 38.
• The number of states with informed consent laws has increased from 18 to 33.
• The number of states with abortion clinic regulations increased from 21 to 30.
• 21 States have provisions to give women information about the availability of ultrasound services prior to abortion. Six of these states require an ultrasound for each abortion require the abortion provider to offer the opportunity to view the image.

These laws, as well as public funding restrictions, parental involvement laws, and properly designed informed consent laws all have helped reduce US abortion rates to a level not seen since the court decided Roe v. Wade in 1973.

But these gains are fragile. They are contingent on the composition of the Supreme Court. The American pro-life movement is acutely aware that, with a single decision from the Supreme Court, all these gains can vanish overnight—as they did in 1973. And another such decision may be drawing near.

In 2013, Texas passed a law that requires physicians performing abortions to have admitting privileges at a nearby hospital, and sets the health and safety standards for abortion clinics at the same level as those for an ambulatory surgical center. Because most abortion clinics do not meet these standards, it is possible that 34 out of 40 abortion clinics in Texas may close. Defenders of abortion have challenged this law in court, and it has now made its way to the very top of the judicial system. On March 2^nd 2016, the Supreme Court began hearing arguments in Whole Woman’s Health v. Hellerstedt. Bearing in mind the “undue burden” standard of Planned Parenthood v Casey, the court will consider to what extent laws that regulate abortion for the stated purpose of promoting health place an “undue burden” on the woman seeking an abortion. This is the first time the Supreme Court has heard a case concerning abortion in a decade. Moreover, with the passing of Antonin Scalia, it is at a moment the balance of the court may tilt decisively against the pro-life cause. Much depends on who is elected in November.

***

At the end of his 2008 letter, John Haldane wrote that, “existing political alignments offer no easy home” for pro-lifers. He is indeed correct: one should never declare that the victory of one political party is a victory for the pro-life movement. Republican Presidents have a mixed record of appointing judges to the Supreme Court have resisted a supposed constitutional right to abortion—since 1980, only four out of seven have done so decisively. But Democratic Presidents have a perfect record. They have always picked pro-abortion candidates.

It is thanks to Republican Presidents that the present gains have been made. But they are not permanent. When the Supreme Court has lost its most vocal critic of a constitutional right to abortion, and the Republican Party may very well nominate a pro-abortion candidate for President, pro-lifers may look nostalgically back on the days when at least one political party gave them and their cause a fair hearing, and a chance to change the composition of the Supreme Court. The battle to overturn Roe v. Wade will continue—but friendly politicians and judges may grow fewer.

 

Nathan Pinkoski is a DPhil candidate in Political Philosophy at the University of Oxford

 

 

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Understanding an Alliance: Part 2

II. The Plan to Overturn Roe v. Wade

In the wake of Roe v. Wade, pro-lifers needed a new strategy. First, the pro-life movement tried to pass a human life amendment to the US Constitution, which would have protected human life from conception until natural death. Over the next decade, the multiple attempts to propose this amendment in Congress failed to reach formal debate. This strategy achieved little, so pro-lifers changed their tack, deciding to strike at the heart of the problem. The new goal was to overturn Roe v. Wade directly. The means would be to change the composition of the Supreme Court. After all, to overturn Roe, all one needed was five out of nine judges.

This aligned with the plans of conservatives. Frustrated by judicial activism that only advanced liberal policies, conservatives were searching for more restrained judges to appoint to the court. Their most powerful intellectual allies were constitutional originalists. Both originalists and pro-lifers began to focus on changing the composition of the Supreme Court. But they faced a difficult battle. A 7-2 majority had decided Roe v. Wade. To overturn it, at least three judges needed to be replaced.

By adopting this strategy, pro-lifers knew they were setting themselves up for a long, inter-generational struggle, for three reasons. First, Supreme Court appointments are for life. To change the composition of the court, one has to wait for judges to retire or die. Consequently, few Presidents ever get to choose more than one or two judges—and they would have to be the right judges. But that raises the second issue: one needs a President sympathetic to the pro-life cause. So to change the court, one would need the right President as well as an opportune vacancy. Third, the US Senate must confirm the President’s appointments to the Supreme Court by a simple majority. If no majority is reached, the President has to appoint someone different. So the Senate would have to be favourable to the President’s choice as well. These three forces could hardly align more than once or twice a decade. It was therefore, a strategy that depended on finding good judges, supporting good politicians, and good luck.

 

III. The Battle for the Supreme Court

In 1980, the conservatives gained the upper hand. They entered the White House with Ronald Reagan, who commanded an energetic and strongly conservative administration. But pro-lifers and originalists had yet to make their case for changing the composition of the court. In 1981, when a vacancy opened up, Ronald Reagan made his first pick for the Supreme Court, Sandra Day O’Connor. Reagan was focused on fulfilling a campaign promise to nominate a woman to the court, and was less concerned about scrutinizing O’Connor on conservative jurisprudence or on abortion. She was considered generally conservative and aspiring for a more restrained, less activist Supreme Court, but was ambiguous on the subject of abortion. Pro-lifers were somewhat disappointed, but hopeful that she would be on their side.

In 1986, Reagan had another chance. Warren Burger, who had voted for Roe v. Wade, resigned as chief justice. This time, the originalist and pro-life alliance had picked up political influence. It had a strong advocate within the White House, in the person of Attorney General Edwin Meese. Meese advised Reagan to move William Rehnquist, who had written a forceful dissent to Roe v. Wade, to Chief Justice, leaving a vacancy for associate justice. To replace him, Meese suggested Robert Bork and Antonin Scalia, the most prominent originalist judges in the country. Reagan chose Scalia. The Democrats in the Senate decided to fight the decision to move Rehnquist, but they lost 65-33. Having tried to stop Rehnquist and failed, the Democrats had no political capital to thwart Scalia, and his appointment was confirmed unanimously.

In 1987, another seat opened up. This time, Reagan decided to choose Robert Bork. But liberals were gathering a fight. They were anxious that with Bork on the court, their liberal majority would be decisively weakened. They decided to block him. In fact, “block” is something of an understatement. A more appropriate term is “carpet-bomb.” Through an impressive national mobilization, the “Block Bork” campaign set out to destroy Bork and his reputation.

On July 1^st Reagan announced Bork as his nominee. Forty-five minutes later, Democratic Senator Ted Kennedy took the floor, declaiming:

‘Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens…’

It was blatant slander—not a single line was an accurate representation of Bork’s judicial philosophy. But as a way to organize opposition, it worked. Senators swore to filibuster the appointment if Bork did not accept Roe v. Wade as law. Labour unions, women’s groups, bar associations, civil liberty groups, many of which had hitherto kept themselves neutral over court nominations, spoke out against Bork. Across the country, public protests were organized. On the first day of the Senate’s hearing, Gregory Peck narrated a nation-wide television advertisement against Bork. Bork was defeated handily in the Senate, 58-42. So ferocious, yet so successful, was the savaging of Bork’s reputation that a neologism emerged, “to Bork,” now featured in the OED:

To defame or vilify (a person) systematically, esp. in the mass media, usually with the aim of preventing his or her appointment to public office; to obstruct or thwart (a person) in this way.

Reagan and Meese were infuriated by the whole affair, but they knew they were beaten. The White House at the time was reeling from the Iran-Contra scandal, and it was deemed expedient to pick a moderate conservative who would be confirmed. They picked Anthony M. Kennedy. He was asked whether he supported a constitutional right to privacy—in light of Roe, code for “a right to abortion.” He did. The Senate confirmed him without incident.

Following Reagan as President, George H.W. Bush had the opportunity to appoint to replace two justices who supported Roe v. Wade with two who did not. He chose David Souter and Clarence Thomas. In the first case, Bush opted for an uncontroversial pick—Souter’s record on contentious topics was vague. In the second case, Bush opted for a well-known conservative. It provoked a vicious nomination battle, but the Senate confirmed him 52-48. With five justices appointed between them, Reagan and Bush had succeeded in changing the composition of the court and appointing a majority. But would this majority take down Roe v. Wade?

 

Nathan Pinkoski is a DPhil candidate in Political Philosophy at the University of Oxford

Understanding an Alliance: the Pro-Life Movement and Conservatism in America

OSFL represented outside the Supreme Court during the March for Life in Washington, D.C.

 

This article is the first of three instalments in a history of the American pro-life movement and its alliance with American conservatism.

What does being pro-life have to with political conservatism? In the United States, it matters a great deal. But outside of the United States, pro-lifers remain suspicious of the American alliance between political conservatism and the pro-life movement. Non-Americans argue that the pro-life movement has gained little from supporting political conservatives (usually from the Republican Party) who are against abortion. In 2008, just after the US election, the Scottish pro-life philosopher John Haldane delivered an eloquent version of this argument, published as an open letter to American pro-lifers. He offered a bit of “friendly advice”: do not ally the pro-life cause too closely with the Republican party. Haldane’s letter remains insightful eight years later, as the Republican party has degenerated into civil war in the face of this year’s presidential election.

Yet the unexpected passing of the United States Supreme Court Justice Antonin Scalia, considered one of the most politically conservative judges on the court, offers the chance to examine the legacy of the alliance between conservatism and the pro-life movement in America in a different light. Contrary to casual portrayals, it is not an alliance between the pro-life movement and the Republican party per se. Rather, it is an alliance between the pro-life movement and a school of constitutional jurisprudence, “originalism.” Republican Presidents sympathetic to both the pro-life movement and originalism have made a more pro-life jurisprudence possible. As Scalia was both the court’s most vocal proponent of constitutional originalism, and also an unceasing critic of a constitutional right to abortion, his career as Supreme Court Justice personified this alliance. And the alliance between originalism and the pro-life cause, while not a total victory, still deserves to be recognised as a success for the American pro-life movement.

 

1. The Rise of Judicial Activism

The basic reason for the alliance between the pro-life movement and originalism concerns the character of American law. What is the supreme law in the United States? The answer is the US Constitution. It is a single, written document with authority over all other laws and customs. It limits the actions of all government officials, and sets forth the rights and liberties of the people. As it is a written document, the words and phrases of the Constitution are immensely important. They cannot be ignored, or assigned whatever meaning the interpreter wants. If they were, there would be little purpose in having a written Constitution. Yet there is an interpretive problem with understanding the meaning of these words. Do the meanings of the words change with the times, or ought they to be read exactly as they were intended in the Constitution’s first drafting?

Proponents of constitutional originalism argue that the meaning of the Constitution is fixed by the meaning of the words they had at the time they were adopted—their “original” meaning, as it were. New meanings cannot be invented, and old meanings cannot be avoided. The American people can change the Constitution by amendment, but they cannot alter its meaning to suit present purposes. Constitutional originalism is an argument that the majority may rule and legislate in the manner they please, as long as they do not violate the express terms of the Constitution.

By the 1960s, the Supreme Court – which is tasked with the interpretation and application of the Constitution – had set originalism aside. The new fashion was “living constitutionalism,” where the meaning of the words of the Constitution changes with the times. This gave the Supreme Court considerable flexibility in interpreting and applying the Constitution; Supreme Court judges now had considerable power to strike down laws they found objectionable. During the 1960s, the Supreme Court became a court of judicial activism. It used its power to interpret the constitution in order to advance particular policy ends, such as redrawing election districts, ending government-directed school prayers, striking down laws prohibiting the sale of contraceptives, or obliging police to recite criminal suspects their rights upon arrest (the famous “Miranda” rights popularized in television police dramas). Some of their decisions arguably realized good policy outcomes. But the Supreme Court’s analysis bore little relation to the words of the Constitution. The Court was assuming a sweeping authority for itself. Moreover, political conservatives were increasingly troubled that the Court only used its authority to advance ideologically liberal policy outcomes. As the 1960s progressed, the Court’s decisions provoked greater controversy than ever before. Conservatives became highly critical of judicial activism, but the Court was proving difficult to restrain and its decisions were more and more unpredictable.

In 1973, in Roe v. Wade, the activist Supreme Court went nuclear. It declared that the US Constitution provided a privacy right to abortion. It was an egregious case of judicial activism that flagrantly disregarded the text of the Constitution. The Constitution provided no right to privacy, so the court had to at once invent that right, and then argue that the right of privacy further entailed a right to abortion. The Court then claimed this right was to be protected from government restriction, making it, as a matter of constitutional law, absolute. What dismayed many about Roe, even supporters of abortion, was that it could not possibly be defended as an interpretation of the Constitution.

The consequences of the case were catastrophic, and not only in human terms. Since the 1960s, pro-lifers had been advancing the pro-life cause in legislatures and in the courts, advocating for protecting the life of the unborn. They had been winning noteworthy successes in the early 1970s, encouraging states to pass laws that restricted abortion. But Roe wiped all those gains out. Pro-lifers lost the chance to advance their arguments through democratic means, and were at once excluded from making legal arguments. Roe was a great political defeat for the pro-life movement.

To be continued…

Nathan Pinkoski is a DPhil candidate in Political Philosophy at the University of Oxford