It is generally agreed that America is more politically divided than it has been since at least the days of the Vietnam War and the turbulent sixties. There are many factors contributing to our division—economic, cultural and racial—all enlarged by the relentlessly divisive instincts of the current president. No single factor, however, is more divisive than the issue of abortion and the politicization of that issue by both parties. In the case of Republican politicians, it is almost impossible to maintain a “pro-choice” position; for Democrats the reverse is true with a “pro-life” view generally considered an anathema.
My own view, as expressed in previous blogs, is that I understand and respect the position of pro-life advocates: that a life begins at conception and is fully entitled to protection, morally and legally, from that moment. Nevertheless, I do not share that view and believe that it should not be allowed to eliminate or erode the constitutional protection of women’s rights defined by the Supreme Court in Roe v. Wade and Planned Parenthood v. Casey. Moreover, it seems to me that the issue of abortion and its legal status should be regarded as a matter of personal conscience rather than staples of partisan doctrine.
As a recollection of less partisan times, it is worth noting that justices appointed by Republican presidents were largely responsible for shaping the constitutional recognition of abortion rights that exists today. The opinion in Roe v. Wade was written by a Republican appointee, Justice Harry Blackmun, and the 7-2 decision was joined by other Republican appointees, Chief Justice Warren Burger and Justices Potter Stewart and Lewis Powell. Nearly twenty years later, in 1992, the holding of Roe v. Wade was modified but reaffirmed in Planned Parenthood v. Casey, which featured a plurality opinion by three Republican justices.
Planned Parenthood set aside the strict trimester analysis of Roe but upheld the basic constitutional right of a woman to obtain an abortion prior to fetal viability. A plurality opinion written by Republican appointees Sandra Day O’Connor, Anthony Kennedy and David Souter was joined in part by Republican appointees Harry Blackmun and John Paul Stevens. Under Planned Parenthood, the state may regulate abortion prior to fetal viability so long as the regulations do not impose an “undue burden” on a woman’s ability to obtain an abortion; after fetal viability the state may ban abortions except where the ban would endanger the woman’s life or health. The plurality opinion emphasized at length the importance of respecting Roe as a precedent, and observed:
The sum of the precedential enquiry to this point shows Roe’s underpinnings unweakened in any way affecting its central holding. While it has engendered disapproval, it has not been unworkable. An entire generation has come of age free to assume Roe’s concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions; no erosion of principle going to liberty or personal autonomy has left Roe’s central holding a doctrinal remnant.
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A decision to overrule Roe’s essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court’s legitimacy, and to the Nation’s commitment to the rule of law. It is therefore imperative to adhere to the essence of Roe’s original decision, and we do so today.
Some self-styled “modern Republicans” assert that the Republican justices responsible for Roe and Planned Parenthood were not “real” Republicans—perhaps even RINOs . For those of us who fondly recall that earlier generation, the most fitting response is perhaps vive la difference.
The official position of the Republican Party, as reflected in its quadrennial platforms, evolved over time. In 1976, the first platform after Roe v. Wade was decided, took a relatively tolerant stance:
The question of abortion is one of the most difficult and controversial of our time. It is undoubtedly a moral and personal issue but it also involves complex questions relating to medical science and criminal justice. There are those in our Party who favor complete support for the Supreme Court decision which permits abortion on demand. There are others who share sincere convictions that the Supreme Court’s decision must be changed by a constitutional amendment prohibiting all abortions. Others have yet to take a position, or they have assumed a stance somewhere in between polar positions.
We protest the Supreme Court’s intrusion into the family structure through its denial of the parents’ obligation and right to guide their minor children. The Republican Party favors a continuance of the public dialogue on abortion and supports the efforts of those who seek enactment of a constitutional amendment to restore protection of the right to life for unborn children.
In 1980, the platform again called for a constitutional amendment, but acknowledged “the complex nature of its various issues” and “differing views on this question among Americans in general.” By 1984, references to complexity and differing views had disappeared, a constitutional amendment was again endorsed, and there was a call for “appointment of judges at all levels of the judiciary who respect traditional family values and the sanctity of innocent human life.” Similar language appeared in subsequent platforms. The 2016 platform reached new heights of stridency, not only referring to abortion 37 times but urging the defunding of Planned Parenthood.
The anti-abortion campaign of the Republican Party has no doubt reaped electoral rewards. Most notably, it has won the support of Evangelicals, who today are a crucial element of Donald Trump’s base. While some Evangelicals have been unable to stomach Trump’s personal history and behavior, the majority seem willing to overlook them. Leading religious conservative Jerry Falwell, President of Liberty University, is one of Trump’s most ardent supporters. He has expressly vouched for Trump’s moral character, adding that whether Trump was a good Christian was simply a matter between him and God. Air brushing Trump’s moral failings, Falwell proclaimed “Evangelicals believe every human being is a sinner. We’re all imperfect, we’re all flawed, and we’re redeemed by the blood of Jesus Christ.”
Although Trump once depicted himself as “very pro-choice,” he now fervently woos Evangelicals by attacking abortion. Thus, in his State of the Union message this year, he referred to abortions in vivid language, claiming that New York law would “allow a baby to be ripped from the mother’s womb moments before birth.” Two days later, at the National Prayer Breakfast, he piously intoned that “As part of our commitment to building a just and loving society, we must build a culture that cherishes the dignity and sanctity of innocent human life. All children, born and unborn, are made in the holy image of God.”
Trump is not the first elected Republican to experience a conversion on abortion, even as the party has moved relentlessly to ratchet-up the rigor of its orthodoxy. In doing so, however, the Republican party’s politicians have left behind many–possibly even a majority–of their party’s members. A 2017 poll by Pew Research Center showed that 59% of Republicans believe abortion should be illegal in all or most cases, while 36% believed it should be legal in all or most cases. On the other hand, a striking 2018 NBC/WSJ poll found that 52% of Republicans believe that Roe v. Wade should be upheld, while 39% believe that it should be overturned. It is not clear how those differing poll results should be reconciled, but even if one credits the Pew Research result, the voices of the 36% who support abortion rights must demand to be heard and respected within the party. And their voices should join those of Democrats and Independents in opposing harsh and unconstitutional restrictions on abortion.
The abortion wars have ebbed and flowed over time, but at present they seem to be approaching a flood tide. There are three principal causes: anti-abortion activism by the Trump administration and Republicans on Capitol Hill, the changed composition of the Supreme Court and a proliferation of abortion legislation at the state level.
The anti-abortion efforts of the Trump administration and Republicans on Capitol Hill are exemplified by renewed efforts to defund Planned Parenthood. (As a matter of full disclosure, I am a supporter of Planned Parenthood and a modest financial contributor.) Administratively, Trump has proposed a new rule under the Title X family-planning grant program that would significantly impact Planned Parenthood and similar clinics. Planned Parenthood provides abortion services and referrals for which federal funding has long been barred. However, it offers at the same facility, a wide-range of other health services including birth control and cancer screenings. Under the new rule, clinics that receive funds from Title X will no longer be able to perform abortions in the same facility where they serve other patients: abortion and other health-care services will be required to be physically and financially separate entities. In addition, Title X participants will not even be able to refer patients to abortion providers, and will be allowed merely to mention abortion to their patients.
The new Title X rule has been supported by Republicans in Congress, who would in fact go further. As Politico reported:
Sen. Joni Ernst (R-Iowa) called the rule a “significant step forward” but said she will continue to push for her bill that would strip Planned Parenthood of all of its federal funding. Other GOP senators want to take another run at passing a bill to make the ban on taxpayer funding for abortion permanent and expand it to private insurance plans that receive federal subsidies.
The new Title X rule was immediately challenged in court, but the litigation is at an early stage and the outcome cannot be predicted. If the rule is allowed to take effect, the extent of the impact on Planned Parenthood is uncertain, but the cost of compliance is likely to mean that a significant number of its clinics will be forced to close. If that happens, and women are deprived of its birth control services, the unintended but inevitable result will be an increase in the number of abortions.
The composition of the Supreme Court has clearly shifted in a way that makes the overturning, or severely limiting, of Roe/Planned Parenthood a definite threat. The change began when Justice O’Connor was replaced by Samuel Alito. The more recent replacement of Justice Scalia with Neil Gorsuch did not alter the dynamic, but the replacement of Justice Kennedy with Brett Kavanaugh may have done so. Although Kavanaugh once clerked for Justice Kennedy, his ideological leanings seem closer to Scalia’s than Kennedy’s. On the other hand, it is not necessarily clear how that will play out in abortion cases.
In explaining her vote to confirm Kavanaugh, Senator Susan Collins, a staunch supporter of Roe v. Wade, went to considerable length in discussing how she had been reassured by Kavanaugh’s respect for precedent:
The judge further explained that precedent provides stability, predictability, reliance and fairness….
As the judge asserted to me, a long-established precedent is not something to be trimmed, narrowed, discarded, or overlooked. Its roots in the Constitution give the concept of stare decisis greater weight simply because a judge might want to on a whim. In short, his views on honoring precedent would preclude attempts to do by stealth that which one has committed not to do overtly.
Noting that Roe v. Wade was decided 45 years ago and reaffirmed 19 years later in Planned Parenthood vs. Casey, I asked Judge Kavanaugh whether the passage of time is relevant to following precedent. He said decisions become part of our legal framework with the passage of time and that honoring precedent is essential to maintaining public confidence.
Justice Kavanaugh’s views, as reported by Senator Collins, seemed to echo the words of the plurality in Planned Parenthood when they upheld the core holding of Roe v. Wade, and the argument to sustain that holding, based on precedent and stability in the law, can only have grown stronger over the ensuing decades. Nevertheless, many advocates of abortion rights were unconvinced by Kavanaugh’s assurances. And they rejected Collins’s recent claim to have been “vindicated” by a recent 6-3 decision in which Kavanaugh joined Chief Justice Roberts and the four liberal Justices in refusing to hear an appeal of two cases that had held in favor of Planned Parenthood (in a dispute over cancellation of Medicaid contracts by Kansas and Louisiana). Neither case involved abortion rights and Collins’s claim of vindication was something of a stretch. Nevertheless, the refusal of both Roberts and Kavanaugh to join with Justices Thomas, Alito and Gorsuch is at least an encouraging sign that the bloc of conservative Justices on the Court is not monolithic.
Chief Justice Roberts is widely seen as deeply concerned—as well he might be—to avoid the Court’s being viewed by the public as an institution whose instincts are overwhelmingly partisan and political rather than independent and judicial. In seeking to avoid, or at least minimize, such a perception, Roberts may be supported by Kavanaugh, as in the Planned Parenthood case. Roberts’s determination, however, will be strongly tested by a number of cases presently before lower courts. The cases were spawned by a variety of laws enacted by Republican-controlled state legislatures, and most, if not all, of the laws are unconstitutional under current law.
Linda Greenhouse, writing in the New York Times, recently provided an informative survey of the abortion cases that may soon arrive at the Supreme Court’s door step (The Flood of Court Cases That Threaten Abortion). Ms. Greenhouse cited a report from the Guttmacher Institute that, since the beginning of the year, 304 laws restricting abortion in various ways have been introduced in state legislatures. The laws involved in current litigation involve restrictions such as these:
- requiring doctors who perform abortions to have admitting privileges at a local hospital (a wholly unnecessary requirement intended to further reduce an already-diminished number of abortion clinics);
- criminalizing an abortion procedure most commonly used for abortions in the second trimester;
- banning abortions motivated by a diagnosis of fetal deformity (contrary to the constitutional right to have an abortion prior to fetal viability for any reason);
- banning abortions after a fetal heartbeat can be detected (which may be as early as 6 weeks, before many women are aware they are pregnant);
- requiring an ultrasound test 18 hours before an abortion (which as a practical matter requires some women to make two round trips, hundreds of miles for some, to a clinic.)
- barring the provision of state public health funds to any organization that furnishes abortion services.
It remains to be seen which of those laws will reach the Supreme Court and be accepted for review. It is likely, however, that one or more will be, and when they are, their disposition by the Court may not only affect millions of women (and men) but have a great deal to do with the way the public regards the Court. Thus, future developments in this area deserve the attention of not only partisans on both sides of the abortion issue, but of all who are concerned with preservation of the rule of law.
Doug,
I echo your other commentators’ thanks for this post, and also want to thank Roger Stetter for his insight into the plight of women, who are subject to male domination in all facets of their lives (yay! a man who “gets it”), and Ken Johnson for sharing his chilling and heart-wrenching experience visiting children born with a fatal deformity which could (now, anyway) be diagnosed in utero.
I agree with Mr. Johnson that a ban on abortions motivated by a diagnosis of fetal deformity is not only blatantly unconstitutional as per Roe/Planned Parenthood, but also gratuitously cruel and moreover, inexplicable. It has long been my belief that most anti-abortion advocates would make an exception for severely-defective fetuses, as many do for rape….because what genuinely motivates them is a desire to “punish” women for having sex for any reason other than procreation (i.e., only “bad girls” have sex for pleasure, and those who do should be forced to pay the “wages of sin”)…whereas a woman who chooses to terminate a pregnancy only because her fetus is deformed, was implicitly open to procreation, and perhaps even trying to conceive. So, this proposed ban genuinely stumps me, because I otherwise hold to my theory that “punishing bad girls” is the true motivation of the anti-abortion movement… if this were not the case, anti-abortionists would be “distributing contraceptives on every street-corner,” as someone recently put it…and advocating massive funding for Planned Parenthood clinics for that purpose, even while demanding that Planned Parenthood neither provide nor make referrals for abortion services.
I am inclined (with fingers crossed) to share your faith in Chief Justice Roberts’s concern that the SC not be viewed as a purely partisan institution, and in the likelihood that Justice Kavanaugh will follow his lead; many people I know were appalled by Sen. Collins’s speech justifying her vote for Kavanaugh, but I tried to look at the “bright side,” i.e., that as a strong supporter of Roe herself, she was putting the assurances Kavanaugh had made to her, personally, in the public record…in effect “backing him into a corner.” And let’s not forget that Justice Kavanaugh has 2 daughters (a pre-teen and young teen, respectively)…surely it’s occurred to him that chickens sometimes have a way of coming home to roost.
Monica
A marvelous post that demonstrates how state legislatures (most of them controlled by Republicans) have found it useful to attack long-established constitutional law. The same people decry government support, including welfare of course, for unwed mothers and families unable to support their offspring.
Women’s reproductive rights (the right to control their own bodies) were an integral part of the Women’s Lib movement when I was in law school 50 years ago. ((Ríe v Wade was decided a year or two after I graduated.) Although I did not agree with Justice Blackmun’s faux medical opinion, I did agree that the U.S. Constitution protects women in the most intimate and difficult decisions of their lives: whether to carry a pregnancy to term
I thought of all the ways a woman (often a minor) might get pregnant, whether by unprotected sex with a man (or boy) or gang rape by a group of men or boys. It seemed clear to me that women, not men, have the sole and exclusive right to decide whether to give birth to a child. That they alone are burdened with the difficult, usually heart-breaking, decision to undergo an abortion.
Some matters are beyond the just control of government. A man’s right to be a man, a woman’s right to be a woman.
It’s bad enough that men dominate women, often imposing unwanted sex upon them. That men have taken advantage of women since time began. They deserve much better and certainly must have the right to terminate an unwanted pregnancy. Of course, Planned Parenthood performs a vital role by helping pregnant women (including young girls) fullly understand their options and decidec upon the best course of action for all who seek their help.
“banning abortions motivated by a diagnosis of fetal deformity (contrary to the constitutional right to have an abortion prior to fetal viability for any reason)” – this one really struck home. Years ago I spent some time as a curate in a town home to a mental development center. With glaring clarity I recall visiting this center and taken to one special ward; a ward populated by hydrocephalic children. My medical guide told me that not one of these children would survive past the third year, then – to my shock – he held a flashlight aside the head of one of these kids… the light beam shone right through the skull. There was no brain to speak of.
With the above-cited restriction in mind, I urge those sorely-misguided folk to visit such a facility and dare them to come out still convinced that a woman should be legally forced to bring such a pregnancy (and with ultrasound, detection of hydrocephaly is sure) to term. More than all the other restrictions cited, this one is born of cruelty posturing, pure and simple, as compassion for the unborn.
Doug, thank you for this recent reminder for us to be vigilant. I enjoy and appreciate your essays.
Ann Schoonmaker
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