US abortion laws intentionally inflammatory
Victoria University of Wellington's Hayden Thorne says recent abortion law changes in the US are intended to force the Supreme Court to revisit Roe v. Wade, but its conservative justices are far from guaranteed to overturn it.
In recent weeks, the US states of Alabama and Georgia have both passed extremely restrictive anti-abortion laws (even Donald Trump thinks they have gone too far) in direct contravention of the landmark 1973 Roe v. Wade Supreme Court decision. In passing these laws, the state legislatures are intentionally creating an issue that will force the Court to examine the laws and, they hope, overturn Roe v. Wade.
Much of the reporting on the laws emphasises the conservative nature of the current Court following Trump’s appointment of Justices Neil Gorsuch and Brett Kavanaugh. The basic argument many subscribe to is something like this: the Court has a conservative majority; conservatives favour restricting abortion rights; therefore, the Court is likely to overturn Roe v. Wade. This interpretation, however, has serious flaws and fails to take account of several important points about how the Court works and the nature of conservative jurisprudence.
A good place to start is Roe v. Wade itself. In 1973, the Court was widely regarded as conservative under the leadership of Chief Justice Warren Burger. Burger was one of four relative newcomers to the Court, appointed by conservative Republican President Richard Nixon. Yet the Roe v. Wade decision, which was made by a 7-2 majority, included not only Burger, but also Lewis F. Powell and Harry Blackmun – both appointed by Nixon too.
The decision, therefore, was not the making of an activist, liberal Court. It had the support of conservative and liberal elements and represents an important if little-understood point about the Court and its Justices – once appointed (for life), many do not vote along purely ideological lines as we expect conservative or liberal politicians to. Beyond their own ideological perspectives, the Justices are also interested in the text of the Constitution, the doctrine of precedent and preserving the reputation of the institution of the Court.
On that basis, it is too simplistic to say a conservative Court will always make decisions in line with conservative values. The Court’s history is filled with instances of conservative Justices supporting liberal rulings and vice versa.
It is also overly simplistic to say support for the Georgia and Alabama laws, and consequently for overruling Roe v. Wade, is the only position consistent with a conservative ideology. Here it is important to distinguish between judicial conservatism and conservatism more generally. Judicial conservatism, an approach new Justices Gorsuch and Kavanaugh appear to subscribe to, includes two fundamental ideas that support maintaining Roe v. Wade.
The first, and one of fundamental importance in this case, is the doctrine of precedent. The Court, by tradition, is extremely hesitant to overrule its own decisions. This hesitation is even more pronounced for conservative Justices who have a strong belief in the need for stability and certainty in the law. As Kavanaugh himself acknowledged in his Senate confirmation hearing testimony, Roe v. Wade is an important precedent that has been a settled part of American law for a long time. Overturning it would be a major departure.
The second important point concerns the actual basis of the Roe v. Wade decision. It is not based on an explicit Constitutional right or a clear statement in the Bill of Rights. Instead, it is based on a constitutional ‘right to privacy’ the Justices found inherent in the Fourteenth Amendment’s conception of personal liberty. That right to privacy is important, but the Court makes it clear it is not an unqualified right and has to be considered against important state interests in the life and health of its citizens.
Two important ideas arise from that statement – firstly, the inclusion of abortion in a ‘right to privacy’ based on the Constitution. Privacy, as a concept, is very much rooted in conservative ideology and in many respects a fundamental part of conservative legal thought. Secondly, another cornerstone of conservative legal thought is the idea of limited state intervention. By overruling Roe v. Wade, the Court would be holding that the state’s interest prevailed over that of the woman – an idea inconsistent with many conservative ideas about the proper role of the state.
The Court contains one sure vote for reversal (Justice Clarence Thomas), four strong voices in support of Roe v. Wade (Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayer and Elena Kagan), two conservatives who seem hesitant to endorse a full reversal (Chief Justice John Roberts and Justice Samuel Alito) and two new Justices who have definite conservative leanings but no established judicial record on the issue (Justices Gorsuch and Kavanaugh).
Chief Justice Roberts has not shown any interest in overruling Roe v. Wade, although he is likely to favour greater restrictions on access to abortion. Roberts has, in fact, twice recently voted with the liberal bloc of the Court to protect Roe v. Wade from attack by similar arguments to those raised in the current situation. He and Justice Alito have both had chances to join opinions that argue for overrule, but neither has ever taken that position.
So the conservative label given to the Court and a majority of its Justices in no way guarantees they will overturn Roe v. Wade. A lot of water must pass under the bridge before that prospect becomes a probable course of action.
A final point should be acknowledged about the route these controversies are taking to the Court. The laws passed by Georgia and Alabama are intentionally inflammatory – specifically designed to force a challenge that reaches the Court with the stated intention of overruling Roe v. Wade. The laws are not a rational expression of policy and are not intended ever to take effect in their current form. The Court, historically, does not take kindly to such attacks on its authority and the stability of its precedents. There is a possibility that in launching such a strong attack on the Court’s position anti-abortion activists have backed the Court into a corner – a position Chief Justice Roberts in particular may resent.