When Choice Might Not Be a Choice Anymore
TRIGGER WARNING:
This post is about abortion and uses words and phrases associated with it.
Each Supreme Court majority opinion ends with the same four words: “It is so ordered.” But, with Roe v. Wade (1973)…has it been? Will it still be in about a year?
The misunderstanding of what the Supreme Court ordered in Roe has been at the center of the debate over abortion rights for decades. The Court did not prohibit states from banning abortions; nor did the ruling provide iron-clad legal protections for “late term” or “partial birth” abortions. What it did do, though, was establish a right to privacy, state that fetuses are not people and therefore do not have 14th Amendment protection, and allow states to decide their own abortion regulations after the first trimester and when the fetus is viable. In 1992, there was a reaffirmation in Planned Parenthood v. Casey. The ruling doubled down on the viability standard set in Roe by replacing the trimester test with the pre- and post-viability test making abortion legal without state restriction up until viability.
The state autonomy provided in Roe…that one is the real pain in the ass. That one has created a situation where women might have to cross state lines to secure a safe abortion. Where women might have to endure an invasive vaginal ultrasound, or a waiting period, or parental consent before securing a safe abortion. The Court has taken stances on some restrictions, though. It ruled in Planned Parenthood v. Danforth (1976) that father’s consent cannot be required for an abortion; stated in Planned Parenthood v. Casey (1992) that married women cannot be required to inform their husbands before having an abortion; and in June Medical Services LLC v. Russo (2020) struck down a Louisiana law requiring doctors performing abortions to have admitting privileges at nearby hospitals. Overall, the wiggle room for states in the Roe decision has left abortion rights unsettled, yet in-tact since the 1970s.
So, you may be thinking, “PolySue, we good, then, right? Even though a recent study found that between 2017-2020 “227 (88.7%) of the 256 state laws related to abortion services established new restrictions.” Even with Barrett on the bench, Roe is Roe is Roe.” Well, CTC fam, I am worried. Forty-eight years after the Court ordered it so, abortion rights are on the shakiest ground ever.
On May 18, the Supreme Court announced it would take up the case Dobbs v. Jackson Women’s Health Organization. In doing so, the Court agreed to consider if states can restrict abortion BEFORE the fetus is viable. According to the Roe and Casey decisions, though, that would be unconstitutional; and in 2018, both a district and appellate court agreed. With clear precedent, and no disagreement between the lower federal courts, why would the Court take this case? What might be the motivation?
Recent research by political scientist Dr. Amanda Bryan finds that the justices are more likely to vote to hear cases when they agree with public opinion on the outcome. Other factors include “the level of public support the Court enjoys, the salience of the issue, and the case’s legal importance.” So, let’s take these one-by-one with Dobbs.
Data show as far back as the 1990s, about 60% of the American public believe abortion should be legal in all or most cases. This would suggest that the liberal justices Breyer, Kagan, and Sotomayor would vote to take the case because of aligned public opinion, to protect the precedent set in Roe and Casey, and to affirm the district and appellate rulings. We might be able to throw Roberts in there after he cast the deciding vote in the Louisiana abortion case last summer citing his respect for precedent. As the Court follows the rule of four (if four justices vote to hear the cases, the case gets added to the docket) maybe, then, we got our four!
How popular is the Supreme Court? As of last fall, 53% of Americans polled approved of the Court. Other than late summer of 2020, this is the highest Court approval since 2010. With high approval, Dr. Bryan finds that “the effect of public opinion on a justices’ decision to grant a case is relatively negligible when the Court enjoys high levels of support.” This could result, then, in some or all of the liberal justices voting not to hear Dodd, or some or all of the conservative justices voting to hear it. We need more information…
How important is abortion to the public? While I can’t use the same measure as Dr. Bryan because it does not exist past 2016, we can look at it this way: in late 2020, 47% of Americans polled said that abortion is one of the important factors in their vote choice, while 24% said it was not important at all. This is about the same as it has been since the mid 1990s. As such, abortion is not near the top of the list of most important issues. Dr. Bryan finds that when the issue of the case is not of large importance to the public, justices are no more or less likely to hear the case. So far it looks like there is no real public opinion constraint on the justices.
What are the legal consequences of how the Court could rule on Dodd? Dr. Bryan argues like other scholars that legal importance is top of mind for whether justices vote to hear a case. Legal importance include things like disagreement between the district and appellate court or a consideration of a landmark piece of legislation. Neither are present in Dodd. Dr. Bryan’s research would suggest that the justices ideologically aligned with public opinion might still vote to hear the case, but non-aligned justices would not. That would only give us at most three justices, as Chief Justice Roberts would be unlikely to vote to hear a case that puts the legitimacy of the Court in peril.
We need to add to point four, though. While Dodd does not deal with a landmark piece of legislation, it does deal with one of the most contentious landmark Court rulings in U.S. history. Could it be that liberal justices who want to preserve abortion rights (like 60% of the public) see the legal importance in protecting Roe and Casey as more and more states chip away at it? And could it be that conservative justices who want to strip away abortion rights see their majority status as an opportunity to overturn Roe and Casey and create a NEW landmark precedent? I would say probably. In the end, the landmark nature of the precedent is most likely driving the decision to hear the case.
No matter how it got on the docket, the case is coming. The question over banning abortions before viability will be decided. What’s really at stake, though, is a woman’s right to control her own body, her right to privacy, and the unfettered ability to keep her decisions between herself and her doctor. In the end, what’s at stake is a woman’s right to HER life. What can we do now? What can we do to protect our lives and our sister’s lives? The same as we’ve always done: use our voices and any funds we have. Organizations like The Center for Reproductive Rights, the ACLU, Planned Parenthood, NARAL, Black Women’s Health Imperative, and Vote Latino provide ways to help and advocate for abortion tights. We are an unstoppable force when backed into a corner, and we in a corner now.
Author: Suzanne Chod