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 2nd 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