The Supreme Court recently heard oral argument in the Case of Dobbs v. Jackson Women’s Health Organization, in which the State of Mississippi restricted access to abortion after 15 weeks of pregnancy.  This, at the same time the Court has so far declined to intervene in attempts to restrain the State of Texas from interfering with abortion services through a strange and bizarre statue that empowers private parties of no particular interest nor qualification to sue doctors and abortion clinics who engage in the practice. 

There has been much gnashing of teeth and pulling of hair.  Protests a plenty.  Threats hurled at the Supreme Court and individual Justices by fire eating advocates/activists as well as threats to emasculate the power of the Supreme Court by some infernally dumb elected leaders.  

Might be appropriate to take a deep breath and put the matter in perspective. 

Let me start with one simple proposition.  Some Senators and others have made statements to the effect that the Supreme Court will “criminalize” abortion.  The Supreme Court doesn’t criminalize anything.  Under our Federalist system, matters such as abortion traditionally were the province of the States.  The Supreme Court is concerned with whether the legislative acts of states impinge upon rights guaranteed under the Constitution.  That is their role.  While I don’t believe Roe v Wade will be overruled, even if it was, it does not mean the federal government, or the Court will make abortions illegal or criminal.  It would mean that under our federalist system the issue would fall back to the states.  

And there are those who have always believed that is the way should be.  In the 1992 Planned Parenthood v. Casey case (more on this case later) Justice Scalia wrote about the abortion issue: 

“. . . by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.  We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.” 

Roe v Wade’s central holding is that the Right to Privacy extends to a woman’s decision to choose an abortion.  

I’ve written in prior blogs about the origins of the Right to Privacy.  It is often said that the Right to Privacy (and abortion) is nowhere mentioned in the Constitution.  True enough, but then there is the Ninth Amendment, which states that simply because a right is enumerated in the Bill of Rights, that is “not meant to disparage or deny other rights” not enumerated.  Though not explicitly set out in the Bill of Rights, Privacy is a “liberty” protected by the Due Process clauses of the Fifth and Fourteenths amendments.  Under traditional analysis, the government may not interfere with such a right unless 1) there is a compelling interest in doing so and 2) the legislative act or regulation is narrowly focused to address the evil it purports to regulate.  This is known as the Strict Scrutiny test.  It doesn’t mean the government can never restrain a right, but if it attempts to do so, it must pass the Strict Scrutiny test which is very difficult to do. 

(To illustrate, in another context, the Right to Travel from place to place without governmental interference is also an aspect of the Right to Privacy.  Of late, we certainly have seen that our right to travel can be severely regulated by the government because it can be argued the rules meet the Strict Scrutiny test.)

In this context the development of Constitutional Law related to Abortion rose first in various state government’s attempts to restrict the distribution of contraceptive information and materials. 

In Griswold v Connecticut in 1965 Justice Douglass wrote that the Right to Privacy protected a couple and their doctor from prosecution for trafficking in such materials.  Reproductive rights as a subset of the Right to Privacy came to its full flower in 1972 when the Supreme Court struck down similar laws restricting access to contraceptives to unmarried couples.  Justice Brennan wrote, “if the right to privacy means anything, it is the right of individuals, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”

The next year Roe v Wade came along.  It was a difficult decision for the Justices.  It was actually originally heard during the previous term, including oral argument, and an opinion was written and circulated.  But before it was published the Chief Justice decided to set the matter over to the following term to be reargued and a new opinion written.  There was a lot of infighting and back room maneuvering among the Justices, but eventually the decision was written and published.  

One of the striking things about the Roe v Wade is that the opinion was written by Justice Blackmun, an appointee of Richard Nixon.  And to the further surprise of many on the left at the time it was joined in by Chief Justice Warren Burger, also appointed by Nixon.  Which should engender a bit of caution to prognosticators. Being an unreformed prognosticator myself, I try to remember that predictions concerning how particular justices will vote in particular cases on particular issues based on their party affiliation or the preference of the President who appoints them, are notoriously inaccurate. 

Roe v Wade was a natural development in the law of the Right to Privacy.  But it is also important to realize what the Roe v Wade rule is and what the fight has been about.  

At no time has the Roe v Wade or its progeny protected an unlimited right of a woman to have an abortion free of state regulation.  The fight has always been over WHEN during the pregnancy the government may restrict a woman’s right to choose and HOW the government may regulate in the area. 

In Roe v Wade, the government’s interest in regulating abortion was recognized in accordance with a trimester analysis.  The woman’s right was strongest in the first trimester and the government’s interest in the health of the woman and the fetus was most compelling in the last trimester.  

Justice Sandra O’Connor before she was appointed to the Supreme Court (by Ronald Reagan) was especially critical of the trimester analysis.  She knew the science was wrong.  The real issue in her mind was the Line of Viability, that is when the fetus can survive outside the womb.  And she rightly predicted that the line would continue to be pushed back as science and understanding improve.  

Justice O’Connor ended up writing the opinion in Planned Parenthood v Casey in 1992.  And it was here where she and the Supreme Court abandoned the trimester analysis of Roe v Wade.  She changed the test.  Hence forth the test as to the Constitutionality of the government action would be whether the government’s regulation was “unduly burdensome” on a woman’s right to terminate a pregnancy “pre-viability.”  But she also took pains to make it clear that Roe v Wade had established a woman’s right to choose.  

O’Connor wrote: “The woman’s right to terminate her pregnancy before viability is the most central principle of Roe v Wade.  It is a rule of law and a component of liberty we cannot renounce.”  

These two appointees of Presidents Richard Nixon and Ronald Reagan established the right of a woman to terminate a pregnancy and confirmed it as a rule of law which cannot be renounced.  It cannot be gainsaid that just because the new justices on the Supreme Court are sitting and hearing cases on the issue of abortion, does not lead to the conclusion that the reversal of Roe v Wade is inevitable. 

The real issue is how the Court will decide cases concerning State attempts to regulate how abortions are performed and the denial, direct or indirect, of access to abortion services.  For example, imposing restrictions on the licensing of abortion clinics, or hospital privileges for doctors who perform abortions.  That is where the fight has been and most likely will continue to be. Not whether a woman has the right. According to the Supreme Court decisions to date, she does.   

In a 2016 case, Whole Women’s Health v Hellerstedt the Undue Burden test fashioned by Justice O’Connor was fleshed out to be whether “unnecessary health regulations have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion” and so “impose an undue burden on the right.” 

Can we predict how the Supreme Court will rule on future cases dealing with right to abortion?  Here is a salient point.  Roe v Wade in 1973 was decided 7 to 2.   Casey in 1992 was decided 5 to 4.  Whole Women’s health in 2016 was decided 5 to 4.  Justice Kennedy is no longer on the court.  In both Casey and Whole Women’s Health he was one of the five in the majority. 

It would seem to indicate a change is very possible.  However, in the individual opinions of the 5-4 decisions, the debate was largely about what test to apply to a particular regulation, not whether the central holding of Roe v Wade, the right of a woman to terminate a pregnancy, would be upheld. 

Is that that central holding is going to change?  

Unlikely.

For other writings by Phil Cline on Constitutional Issues, and other matters, visit philcline.com