Earth to activists: Even if confirmed by the Senate, Brett Kavanaugh doesn’t mean an end to abortion or even Roe.
While his replacing of Anthony Kennedy is likely a positive development, pro-life and abortion activists alike are going into orbit over the prospect of Brett Kavanaugh ushering in the end of Roe. The rhetorical back and forth brings to mind the lyrics of the song “Space Oddity” by shock rocker David Bowie. “This is ground control to Major Tom … can you hear me Major Tom?”
Since the announcement of his retirement, conservatives and liberals alike have been claiming Roe v, Wade is going to be overturned. Jeffrey Tubin, liberal commentator tweeted, “Abortion will be illegal in 20 states 18 months.”
Conservative author and Christian apologist Dr. Michael Brown concurred in an article at Townhall. “[B]ased on his performance to date, it is highly likely, if not almost certain, that President Trump will nominate a solid, pro-life justice. And it is then very likely that Roe v. Wade would be overturned in the years ahead.”
Oh, I wish it were true!
But both sides are leaping too quickly to conclusions that don’t necessarily follow from these recent events.
It’s time activists from both camps return to earth and understand that the appointment of Brett Kavanaugh doesn’t ensure the striking down of Roe v. Wade.
Why? Two reasons.
One – even when Trump gets another justice on court, the current makeup lends itself to continued uncertainty on Roe.
Currently, Clarence Thomas is the only justice who’s ever ruled that Roe was wrongly decided. He joined Chief Justice William Rehnquist’s dissent in Planned Parenthood v. Casey (1992) which stated, “The joint opinion, following its newly minted variation on stare decisis, retains the outer shell of Roe v. Wade, but beats a wholesale retreat from the substance of that case. We believe that Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases.”
Justices Samuel Alito and John Roberts have made conflicting statements on the topic, Roberts’ being especially concerning. During his confirmation hearings for position as circuit judge in 2003, Roberts said “Roe is the settled law of the land.” He later further clarified this position in an interaction with Senator Arlen Specter at his confirmation hearings in 2006.
“Judge Roberts, in your confirmation hearing for the circuit court you testified: ‘Roe is the settled law of the land.’ Do you mean settled for you, settled only for your capacity as a circuit judge, or settled beyond that?” Senator Specter asked.
Roberts responded, “Well, beyond that. It’s settled as a precedent of the court, entitled to respect under principles of stare decisis. And those principles, applied in the Casey case, explain when cases should be revisited and when they should not. And it is settled as a precedent of the court, yes.”
On the other hand, while a lawyer in the Bush Sr. administration, he helped write an amicus brief which stated “We continue to believe that Roe v. Wade was wrongly decided and should be overruled… The Supreme Court’s conclusion in Roe that there is a fundamental right to an abortion finds no support in the text, structure or history of the Constitution.”
Alito’s views are clearer than Roberts’. While working for Ronald Regan’s Solicitor General, Alito wrote a memo regarding possible lines of attack on Roe. “No one seriously believes that the Court is about to overrule Roe. But the Court’s decision to review [the Pennsylvania case] may be a positive sign. By taking these cases, the Court may be signaling an inclination to cut back. What can be made of this opportunity to advance the goals of bringing about the eventual overruling of Roe v. Wade and, in the meantime, of mitigating its effects? We should make clear that we disagree with Roe v. Wade and would welcome the opportunity to brief the issue of whether, and if so to what extent, that decision should be overruled. At the same time, the Justice Department should defend the Pennsylvania law as consistent with Roe and the Court’s other abortion decisions.”
At his senate confirmation hearings, he showed far less regard for bad precedent than Roberts did. Consider this exchange with far-left senator Dick Durbin.
SEN. DURBIN: John Roberts said that Roe v. Wade is the settled law of the land. Do you believe it is the settled law of the land?
ALITO: Roe v. Wade is an important precedent of the Supreme Court. It was decided in 1973. So, it’s been on the books for a long time. It has been challenged on a number of occasions. The Supreme Court has reaffirmed the decision; sometimes on the merits; sometimes–in Casey–based on stare decisis.
DURBIN: Is it the settled law of the land?
ALITO: If “settled” means that it can’t be reexamined, then that’s one thing. If “settled” means that it is a precedent, then it is protected, entitled to respect under the doctrine of stare decisis in that way.
DURBIN: How do you see it?
ALITO: It is a precedent that has now been on the books for several decades. It has been challenged. It has been reaffirmed. But it is an issue that is involved in litigation now at all levels.
Justice Neil Gorsuch has said nothing publicly on the matter and hasn’t ruled in any significant abortion-related cases. It is safe to conclude that Justices Kagan, Ginsburg, Breyer, and Sotomayor all favor legal abortion and will uphold the obviously fallacious rulings in Roe and Casey.
So, there are only two solidly anti-Roe votes among the nine justices; a far cry from the five needed for a majority ruling.
My fellow pro-life friends, let’s all take a deep breath and understand that despite the sensational reactions of many activists, Gorsuch, Roberts, and Brett Kavanaugh are wildcards, and if given the opportunity, represent unknown votes on legal abortion in America.
Second – Anti-abortion cases are rarely brought to the court for review. The Supreme Court only gives certiorari to (agrees to hear) less than one hundred cases per year. Even if an abortion case were to make it to the court, they would need the “right” abortion case to overturn Roe and there is much disagreement about what kind of abortion case could trigger that sort of the review. Add the strong belief in stare decisis of Chief Justice Roberts, his interest in finding consensus and the progressive activism of Kagan, Ginsburg, Breyer, and Sotomayor, and the likelihood is even less that this court would use an abortion-related case to strike down Roe.
Don’t get me wrong, replacing Kennedy with Brett Kavanaugh does put overturning Roe in our sights. And if Ruth Bader Ginsburg (85) and Stephen Breyer (81) retire during the Trump presidency, then we can confidently regard the increased chances of Roe v. Wade finally landing on the ash heap of history where it belongs. But we need a few more Trump-nominated justices before we can start thinking we are on the verge of abolishing abortion altogether.
Even if Roe is overturn, the battle to outlaw abortion would likely be only just beginning because prior to Roe, the issue of abortion was left to the states to decide. Thus, the most likely result of Roe being overturned is the return of the abortion issue to state legislatures.
There is an outside chance that the court could end abortion, but it is small. As Josh Craddock recently wrote for Harvard Law’s academic journal, the 14th amendment clearly prevents the states from allowing “people” to be killed based on arbitrary differences. The question is then, are the preborn “people?” Based on the definitions of the word and the understandings of it when the 14th amendment was authored, Craddock argues that preborn humans are in fact “people” entitled to equal protection of the law under the 14th amendment.
However, as Craddock himself concedes, for a justice to rule that the preborn are constitutionally protected people, he or she would not only have to be a strong textualist and originalist, but also be morally courageous enough to do what is right, even when it means throwing the country into the disarray which would certainly follow an outright and immediate end to abortion. This is extremely unlikely in a court with four leftists and a consensus builder like Roberts.
More than likely, overturning Roe would leave us with a patchwork of state abortion laws across the nation. New York would have abortion on demand and Alabama would probably outlaw it. Despite this outcome being better than our current situation, no anti-abortion activist should be satisfied.
Overturning Roe is a necessary first step in the process of reaching our final goal of enacting a human life amendment to the US Constitution. This, however, requires three fourths of the states, and two thirds of the US Senate to ratify.
Given the vast uncertainty that lies ahead, a constitutional amendment protecting the unborn is clearly a long way off.
We have made huge strides recently in our goal of abolishing abortion. With the replacement of Kennedy, striking down Roe v. Wade is now certainly more plausible. But even if we assume that Brett Kavanugh is a solid anti-Roe vote, the battle to outlaw abortion has only just begun.
I don’t want to be “Johnny Raincloud” but let’s not give our movement false hope and let down our guard. Instead, let’s be realistic about the battle and gird our loins for the long struggle ahead.
Join me in understanding the real odds we face and commit ourselves to the long battle ahead.
Mark Harrington is the founder and President of Created Equal. He founded the organization in 2011 after 11 years at the Center for Bioethical Reform, envisioning the raising up of a team of young apologists. Mark has been an activist since 1993 and has worked full-time in the Pro-Life Movement since 1998.