Following news of Supreme Court Justice Anthony Kennedy’s impending retirement, the nation’s highest court is in for a tumultuous few months. Justice Kennedy, a Catholic, was the court’s perennial swing vote on a number of high-profile rulings, from legalizing same-sex marriage to abortion law. Depending on President Trump’s next appointment, his departure will likely lead to a solid conservative majority on the Supreme Court.
Justice Kennedy was appointed by President Ronald Reagan, a pro-life Republican, but he cast the deciding vote in a 1992 case that upheld Roe v. Wade.
President Trump recently told Fox News that he would “probably not” ask his potential SCOTUS nominees about their votes on Roe, he acknowledged his own plans to “[put] conservative people on [the court],” and said he would leave regulating abortion to the states.
Will Roe v. Wade be overturned?
Richard Doerflinger, former associate director of pro-life activities at the U.S. Conference of Catholic Bishops and current fellow at the University of Notre Dame Center for Ethics and Culture, believes that it is unlikely.
If Roe were overturned, Mr. Doerflinger says, the decision by itself would not lead to any restrictions on abortion but would allow for more debate on the issue.
“It would free both sides in this debate to argue their case and try to reach at least a majority consensus on what is just and what the society will bear,” Mr. Doerflinger says.
“The result would likely be different in different states and different in the same state from one year to another, as with most issues in our democracy,” he says. “But the pro-life viewpoint would not be excluded in principle from that debate, blocked in advance by what the court calls a constitutional right.”
But coming back from a “bad” court decision takes time and requires a well-reasoned, step-by-step process, according to Mr. Doerflinger. For example, Plessy v. Ferguson, which ruled that segregation was constitutional according to the principle of separate but equal, was only overturned in 1954 with the Brown v. Board of Education decision.
Mr. Doerflinger calls this “the most time-honored path.” Through this lens, it could be argued that the process toward the reversal of Roe has already begun.
In Planned Parenthood v. Casey, the 1992 decision that upheld the right to an abortion, he points out that not many people noticed how the majority of Supreme Court Justices stopped naming the unborn with the biologically incoherent phrase “potential life” but referred to to state’s interest in “protecting the life of the unborn.”
“Even the Casey court said that if Roe was wrong, its error lay not in its regard for women’s rights, but in its relative disregard for the status of the child. Let’s set the justices free to begin exploring that insight,” Mr. Doerflinger says.
On the Supreme Court’s empty seat and Mr. Trump’s impending nomination to fill it, Mr. Doerflinger says, the president will most likely choose someone who is “widely respected as a careful legal thinker” rather than someone with an obvious pro-life or pro-choice stance.
Could a new court result in more restrictions on abortion?
Regardless of Mr. Trump and the court’s future actions on Roe v. Wade, some analysts are expecting far-reaching restrictions on abortion.
Current laws in some states require abortion clinics to follow the same safety regulations required of ambulatory surgical centers. At present, some abortion practitioners need to have admitting privileges at a local hospital in order to be involved with addressing potential complications with patients.
Mr. Doerflinger says that aside from meaningful safety regulations, restrictions on abortion might include effective “informed consent” requirements. A medical professional may be required to discuss the humanity of the unborn with women seeking abortions or ask to them to review the possible physical or psychological aftermath of abortion. Germany, for example, requires that pregnant women attend a counseling session on alternatives to abortion before the first trimester.
Mr. Doerflinger also suggests that the court might allow a legislative ban on elective abortions in the last months of pregnancy (already approved by some states and the House of Representatives as the Pain-Capable Unborn Child Protection Act) and leeway for government funding to promote natural births over abortions.
The government could also forbid the mailing of abortifacients and other abortion-inducing drugs, which are currently legal, as they once did with the Comstock Laws of 1873 and 1909, which criminalized the mailing of drugs and contraceptives. These federal acts, Mr. Doerflinger says, were supported by pro-life outreach groups for many years.
Mr. Doerflinger adds that the pro-life cause is broader than seeking legal restrictions on abortion, however. “Simply changing the law has never been enough by itself—and if one does not win the battle for public opinion, who would pass the laws or vote for those willing to do so, in any case?
“Caring for the needs of pregnant women, educating and motivating others and passing good laws are and always have been equally essential, as certainly the Catholic bishops’ pastoral plan has declared since 1975,” he says.
Correction, July 5: The year of Plessy v. Ferguson was 1896, not 1986. Also that ruling did not legalize segregation per se, but upheld the principle of separate but equal.