Vox By Scott Lemieux May 15, 2019
Roe v. Wade has survived for decades because of luck. That’s about to change.
It’s been a bad few weeks for supporters of reproductive freedom.
On Tuesday, the Alabama legislature passed one of the most restrictive abortion bills in the country, banning the procedure with no exception for rape or incest. Last week, Georgia passed a so-called “heartbeat†bill that would prohibit an abortion once a fetal heartbeat can be picked up — the fourth such bill to be passed in 2019.
These laws will surely be challenged and make their way to the Supreme Court. Once there, reproductive rights advocates worry that the newly empowered conservative majority, entrenched by President Trump in the wake of Justice Anthony Kennedy’s retirement, will use the opportunity to finally strike down Roe v. Wade.
But not everyone thinks that’s necessarily what lies ahead. The thinking goes that these bills are so extreme that they seem almost designed to be struck down by the high court — and that is of a piece with how the Republican establishment views abortion, which it basically sees as more effective at ginning up the base when it remains a live issue.
The Niskanen Institute’s Will Wilkinson, a generally astute writer, said of the Georgia bill, “it seems pretty clear to me [the authors the bill] want it to be overturned.†And why would Republicans want that? “They want to keep their base mad and run on it forever, but never catch the car.†Following Kennedy’s retirement in 2018, Slate’s William Saletan explained “Why Republicans don’t actually want to repeal Roe.†Kathleen Parker of the Washington Post, immediately before Trump’s nomination of Brett Kavanaugh, asserted that no Court majority would want to overrule Roe and “be credited with upending settled law and causing massive societal upheaval.â€
It’s not an outlandish claim. After all, five Republican nominees were part of the original Roe majority, and the decision has now survived more than two decades with a Supreme Court median vote nominated by anti-abortion presidents. It seems plausible that Republican elites would rather have Roe on the books to rally the rank and file than pay the political price of overruling it.
But this argument fails to withstand serious historical scrutiny. The survival of Roe was not the inevitable product of some master Republican plan, but a contingent series of flukes and historical accidents. And just this week, the Court’s conservative majority showed its willingness to overturn decades-old precedent. Roe still being law in 2019 represents remarkable good luck for supporters of reproductive freedom. With Republicans capturing the Senate in 2014 and winning the presidency in 2016, and Trump replacing Kennedy in 2018, this luck has almost certainly run out.
The path to today’s abortion politics
The idea that the Republican Party doesn’t really want to repeal Roe v. Wade — that the landmark abortion case is more useful to it as a mobilizing issue — rests on Supreme Court decisions that were the product less of political scheming and more of happenstance and luck.
Roe was in serious jeopardy as early as the late ’80s, as the Reagan administration took the position that Roe should be overruled and states passed envelope-pushing statutes to generate test cases. In 1989, the Court issued a ruling in Webster v. Reproductive Health Services, which considered a Missouri law that defined life as beginning at conception and declared that “unborn children have protectable interests in life, health, and well-being.â€
But Roe survived the first major attempt to dismantle it. Chief Justice William Rehnquist (who dissented in Roe) tried to assemble a coalition for effectively ending Roe but fell one vote short. The result was an opinion that expressed hostility to Roe without changing the legal status quo.
The roadblock was Justice Sandra Day O’Connor, who in a concurrence insisted that the Missouri statute did not require the Court to consider whether Roe was correctly decided because the “fetal personhood†language did not have concrete legal meaning.
Roe survived, but the threat was clear. “For today, the women of this nation still retain the liberty to control their destinies,†Justice Harry Blackmun, Roe’s author, famously wrote in his dissent. “But the signs are evident and very ominous, and a chill wind blows.â€
More:
https://www.vox.com/2019/5/15/18623073/roe-wade-abortion-georgia-alabama-supreme-court
