President Donald Trump has nominated Brett Kavanaugh to the Supreme Court, which puts Roe v. Wade in serious peril. Proponents of criminalizing abortion are, and should be, pleased with this development.
But some people claiming to be in favor of abortion rights have argued that they’re also okay with Roe being overruled — on the grounds that the decision was poorly reasoned and it choked off democratic debate prematurely.
“Let Roe go,” urged Megan McArdle of the Washington Post last week, even as she explained she believed as a general principle that women ought to be free to choose abortion. This might seem like idiosyncratic contrarianism. But for many years pro-choice/anti-Roe punditry has become a genre unto itself, with columnist after columnist asserting that overruling Roe wouldn’t be that big of a deal.
Benjamin Wittes, for example, predicted in the Atlantic, in 2005, that “in the absence of Roe abortion rights would probably be protected by the laws of most states relatively quickly.” And in the same magazine Jeffrey Rosen agreed the next year, “Access to abortion wouldn’t necessarily become less widely available than it is now.”
But sometimes an argument is counterintuitive because it’s wrong, and that’s the case here. Still, it’s an argument worthy of attention. McArdle’s column serves as a useful target for analysis because it brings together in one place a lot of common fallacies about Roe, ones that will definitely be used in the coming months by opponents of legal abortion in order to minimize the effects of overruling a decision that roughly 70 percent of the public believes should be upheld. Let’s look at some of these myths in detail.
It’s not true that Roe isn’t rooted in well-established constitutional principles
Roe is “a poorly reasoned mess,” asserted McArdle, adding that “it’s all ‘emanations and penumbras’ and similarly float-y language.” This line of argument has been echoed by other nominally pro-choice and anti-Roe pundits. “Roe has had a deep legitimacy problem, stemming from its weakness as a legal opinion,” according to Wittes.
Opponents of Roe writing for general audiences routinely invoke the “penumbras” phrase, from Justice William O. Douglas’s opinion striking down a ban on the use or distribution of contraception in Griswold v. Connecticut, as if doing so self-evidently renders the opinion absurd. Douglas had used that phrase to defend the idea that the Constitution includes an implicit right to privacy, in at least some matters of marriage and family, and the Roe majority cited it to extend that idea to the realm of abortion.
But Justice Douglas’s observation that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance” describes a perfectly banal concept: The enumeration of rights, individually or collectively, implies the existence of other rights. As Douglas himself pointed out, in Griswold, the Supreme Court has enforced a “right of association” although that phrase is not found in the Constitution, because guarantees of the right to free speech and to petition the government would mean little without the right to form political associations.
Earlier this term, the Supreme Court struck down the Professional and Amateur Sports Protection Act, which prevented most states from making their own rules about sports gambling, based on the doctrine of “anticommandeering.” That means the the US could not conscript state officials to enforce its own regulatory schemes. Now, the concept of “anticommandeering” is not found explicitly in the Constitution, but according to the Rehnquist Court it is implicit in the general federalist structure of the Constitution. In short, mocking the phrase “emanations and penumbras” isn’t much of an argument.
But it’s even more problematic when applied to Roe because the holding in that case does not rely on Douglas’s argument that the right to privacy is implicit in the “specific guarantees in the Bill of Rights” (that is, the penumbras). The right to privacy, according to Justice Harry Blackmun’s opinion for the Court in Roe, should be located in “the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action.” This doctrine, generally called “substantive due process,” is that some rights are so fundamental that abrogating them is by definition a violation of the “due process of law.”
New Dealers like Douglas distrusted the doctrine because it had been used by pre-New Deal Courts to strike down economic regulations, seemingly because that’s what the justices preferred politically. But the moderate Republicans who controlled the Court in 1973 were more comfortable with the concept.
Rooting the right to privacy in the 14th Amendment is particularly significant. Justice Douglas is one of the most liberal justices in the history of the Court — an easy target for Roe’s critics. But Blackmun was largely drawing on a theory (privacy is rooted in substantive due process) laid out in a concurrence by Justice John Marshall Harlan, in Griswold. Harlan was the Warren Court’s house conservative; the fact that he and Douglas agreed that a right to privacy exists, if for different reasons, suggests a belief in such a right need not be narrowly partisan. (And it’s worth remembering that Blackmun, the author of the Roe opinion, was a Nixon appointee, and he was joined by two of the three other Nixon appointees.
While the opinions in Griswold may seem a little thin, that’s partly because both Douglas and Harlan had stated their views in much more detail four years earlier in their dissents in Poe v. Ullman. In that case, a majority of the court refused to hear a challenge to the Connecticut law it later struck down in Griswold, and Douglas and Harlan explained both why the Court should have taken the case — which prevented any birth control clinics from operating in the state — and should have ruled the law unconstitutional. Both dissents in Poe are worth reading and provide further evidence that the right to privacy has deep roots in the American constitutional tradition. And if Griswold is right, Roe is at least plausible.
As Justice John Paul Stevens put it in a 1986 case, “There may, of course, be a significant difference in the strength of the countervailing state interest, but I fail to see how a decision on childbearing becomes less important the day after conception than the day before.”
To be clear, as is true for virtually all constitutional questions of any interest, reasonable people can disagree with the outcome of Roe. One can argue that there are no privacy protections implicit in the Constitution, and that a statute making the use of contraceptives illegal and empowering police to search bedrooms for evidence of them raises no constitutional problems. Or one can argue that the privacy doctrine is sound but not applicable to Roe because fetal life presents a unique problem.
But Roe hardly invented the idea that the Constitution created a zone of privacy for families where the state may not intrude; in that sense, at least, it is well grounded in established doctrine.
Roe does not forbid virtually all state regulation of abortion
According to the anti-abortion National Review editor Rich Lowry, Roe “has made it all but impossible to regulate abortion, except in the narrowest circumstances.” This echoes a theme of the pro-choice, anti-Roe pundits: Wittes claimed that the Court had “removed the abortion question from the legislative realm.”
But this is simply false. It’s true that Roe itself forbade most regulation of abortion prior to fetal viability, which it defined as occurring after the second “trimester.” But as modified by the Supreme Court in the 1992 case Planned Parenthood v. Casey — which discarded the trimester framework — states can regulate pre-viability abortions as long as they do not constitute an “undue burden” on a woman’s right to choose.
And the Supreme Court has applied that test very loosely. Even as states have passed more and more restrictions on abortion — including Targeted Regulation of Abortion Providers (TRAP) laws that have forced perfectly safe abortion clinics to close – the Court struck down only one regulation under Casey from 1992 to 2016, and that decision was quickly overruled when George W. Bush’s nominees joined the Court. (The Court upheld a federal ban on “partial-birth abortion” after striking down a nearly identical state statute less than a decade earlier.)
The Court finally struck down a particularly extreme Texas statute in 2016, one that required abortion clinics to have facilities similar to those in clinics that performed a much wider range of procedure, and also required doctors to have admitting privileges in a nearby hospital. These requirements would have required a majority of the state’s clinics to close. This decision has become effectively a dead letter with Kennedy’s retirement. But in any case, states have many regulatory tools at their disposal to discourage women from getting abortions. These regulations have been distressingly effective at making abortion inaccessible for many women, particularly those in rural areas.
But abortion is much more tightly regulated in France!
According to McArdle, the US has “one of the world’s most permissive abortion laws.” This point, related to the previous one, uses the somewhat more stringent term limits in most European countries as a “gotcha” against liberals. “France, like many European countries, takes a stricter line on abortion than does the United States,” wrote Kevin Williamson, of National Review (and, ever so briefly, the Atlantic).
Ross Douthat has similarly argued that the French system, which permits abortion for any reason within 12 weeks of conception, afterward requiring certification by two doctors that the continuation of a pregnancy would be threatening to a woman’s life or health, represents a plausible “middle ground” in the American abortion debate.
The comparison is misleading at best because it abstracts a single regulatory aspect from a complex health care system and applies it to a radically different political and geographic context. Making abortion law comparable in the US and France would require not merely changing the term limit but repealing the Hyde Amendment — which bans Medicaid funds from being used for abortions. (In France, in contrast, the state pays 80 percent to 100 percent of the cost of an abortion.) It would also mean subsidizing a bunch of rural public health clinics that offer women a full array of reproductive services, including abortion, and a repeal of most of the state laws that restrict the termination of a pregnancy.
Needless to say, this isn’t the deal American anti-abortion activists are offering. In fact, many American women would have much greater access to abortion if they lived under the French framework.
Roe’s protections aren’t primarily about the gestation point beyond which the state may forbid abortion
The two points above have emanations that form a penumbra that casts a shadow over the scope of the abortion debate in the United States. The arguments made by McArdle, Williamson, Lowry, and Douthat all imply that the primary subject of debate ought to be the point of the pregnancy at which abortion is banned outright.
The argument that second trimester, pre-viability abortions should be banned is not, in my view, persuasive. But more to the point, focusing on bans based on the age of the fetus obscures the obvious fact that the vast majority of abortion regulations — with mandatory waiting periods, parental involvement and informed consent requirements, TRAP laws — apply at every stage of the pregnancy. (More than 90 percent of abortions occur in the first trimester, yet the restrictions apply to them as well.)
Opponents of Roe prefer to focus on second- and third-trimester abortions, the latter of which are vanishingly rare. According to the Centers for Disease Control and Prevention, only 1.3 percent of abortions occur after the 21st week.
If the goal of the anti-abortion movement is to stop second-term-or-later abortions, why do anti-abortion groups and their legislative allies also favor establishing a bewildering obstacle course of arbitrary regulations that affect abortions from the moment of conception onward.
The focus on term limits is a diversionary tactic intended to conceal a pincer movement carefully designed to strangle a woman’s right to choose. On the one hand, the number of weeks a woman has to obtain an abortion gets smaller and smaller; on the other hand, the hurdles for women seeking an abortion in a timely matter grow higher and higher.
This is particularly important because permitting onerous regulations targeted at abortion clinics is one way the Supreme Court can empower states to make abortion inaccessible without immediately and explicitly overruling Roe.
Overruling Roe is no big deal because public opinion will protect abortion
Another staple of the pro-choice, anti-Roe argument is that, because abortion rights are generally popular, the protection of the Supreme Court isn’t really necessary. Wittes asserted that “the Supreme Court has prevented abortion-rights supporters from winning a debate in which public opinion favors them.” Rosen recently and tellingly argued that the transformations if Roe is overruled or gutted “may be less dramatic, in practice, than liberals fear” because “the main effect would be restricting the access of poor women who have little access today.”
It is very odd indeed to argue that overruling Roe is no big deal because its greatest effects would be on the most vulnerable populations. (It’s true that, because of Casey, the access of many poor women to abortion has been greatly reduced. But from a pro-abortion rights perspective the obvious answer is to move toward the more robust protections of the original Roe rather than making abortion even less accessible.)
But the inequitable impact of overruling Roe is important politically as well. The women who pay the biggest price for abortion criminalization and most regulations are the least politically powerful.
Even when abortion is banned by a state, affluent women generally have access to safe abortions, either through the “gray market” of doctors who quietly perform them or by their ability to travel to other jurisdictions. As a result, many affluent pro-abortion rights Republican voters can keep voting Republican knowing that more restrictive abortion laws will not affect them or people similarly situated. After all, before Roe the vast majority of states kept abortion bans on the books even as national majorities become supportive of abortion rights.
Elections are not referendums; supporting a particular unpopular position doesn’t necessarily spell electoral doom for a party. And that’s doubly true when the population affected most by a law has little political power. This is exactly a case where judicial protection of a threatened right is both appropriate and in many cases necessary.
Overturning Roe won’t return the issue to the states
Trump said in an interview after Kennedy’s resignation that abortion “could very well end up with the states at some point.” Many pundits — including McArdle — have accepted the framing.
But the assumption that overruling Roe would send the issue back to the states is clearly false. As previously discussed, Congress has passed, and the Supreme Court has upheld, a nationwide ban of what anti-abortion groups have labeled “partial-birth abortions.” To find the last time the House of Representatives passed an abortion regulation, you would have to go all the way back to ... this January, when it passed a bill that would require doctors to provide medical care for a fetus born alive during an abortion procedure.
And last year, the House passed a bill that would ban abortions after 20 weeks in every state in the union. So far, these bills have died in the Senate. But since the Republican Party is becoming more and more hostile to abortion rights, abortion would remain a national issue. Should the filibuster be eliminated or substantially watered down, a Republican government with slightly larger Senate majorities than it has now would be able to pass national abortion regulations.
If you support the criminalization of abortion, or believe that safe abortions should be available to affluent women but not to poor and rural women, you should be happy about the near certainty that Roe will be overruled or eviscerated. But whatever the nation’s contrarian pundits might tell you, if you support the reproductive rights of women, you should be appalled.
Scott Lemieux is a lecturer in political science at the University of Washington, specializing in constitutional law, the Supreme Court, and American political institutions and development. He is, with David Watkins, the co-author of Judicial Review and Contemporary Democratic Theory: Power, Domination and the Courts. He blogs at Lawyers, Guns & Money.
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