Is Roe v. Wade Finished?

Alabama’s Republican Governor Kay Ivey just signed a law making abortion a felony, following on Georgia’s move 10 days ago.

Alabama Governor Kay Ivey at the White House about a year ago

The immediate aim of both draconian laws? To get the Supreme Court to take up one of the cases that will arise as the result of challenges to those new state laws in federal courts. Explains Governor Ivey:

“Many Americans, myself included, disagreed when Roe v. Wade was handed down in 1973. The sponsors of this bill believe it is time, once again, for the U.S. Supreme Court to revisit this important matter, and they believe this act may bring about the best opportunity for this to occur.”

Let’s do a very quick recap of the new Georgia and Alabama abortion laws, and how they differ:

  • Alabama outlaws abortions at any stage of pregnancy except in cases where the mother’s health is endangered; it does not allow for exceptions in the case of rape and/or incest resulting in pregnancy. Georgia outlaws abortions after 6 weeks, and does make exceptions for rape and/or incest, if the person seeking the abortion provides a police report.
  • Alabama makes it a “Class A” felony for a doctor to perform an abortion in the state, which could be punishable by a life sentence. Georgia is less specific about who could be charged, which leaves open the possibility that not only doctors but also women seeking abortions could be tried for murder.
  • Because the main goal for both these new laws is to get the Supreme Court to reconsider Roe v. Wade, neither goes into effect right away. The Alabama law not until November, the Georgia law not until next year.

So how likely is it that those states (and others’) bold new efforts will succeed in getting the Supreme Court to act? We believe that if and when one or more of these explicit Roe v. Wade challenges does reach the Supreme Court, aside from Chief Justice John Roberts, the newest Justice, Brett Kavanaugh, will be the key to how it all plays out…

So let’s rewind to the confirmation hearings of Justice Kavanagh. And in particular, the eely way he responds to very pointed questions about Roe v. Wade from Democratic Senator Dianne Feinstein.

Take a look (click on the photo to watch) and then we’ll review:

Kavanagh discusses Roe v. Wade in the context of “stare decisis”. Which means: “to stand by things decided”. Which means the Supreme Court believes in precedent as a doctrine. Or to put it another way, the Supreme Court generally accepts prior decisions by the Supreme Court, or at least doesn’t go out of its way to challenge them, for the simple reason that otherwise it would be continually reevaluating the same issues over and over again. But that’s not always the case

And just last week, in an unrelated case in which the Court’s Conservative majority reversed 4 decades of precedent, Justice Stepehen Breyer presented a sharply worded dissent, that doubled as a dire warning, concluding:

“Today’s decision can only cause one to wonder which cases the Court will overrule next.”

Feinstein points out that prospective judges often refer to “stare decisis” in hearings, and then proceed to ignore it once they’re on the Court. Kavanaugh does not respond to that directly. Instead he descends into a mire of gobbledygook, where he contends he “understands how deeply people feel about this issue”.

Now, Maine Republican Senator Susan Collins, who ultimately voted to confirm Kavanaugh, said that in a private meeting he assured her he considered Roe v. Wade to be settled by “precedent upon precedent”. But if he spoke of it in a similar way to the way we just again watched him do in that open hearing, we don’t think it’s unfair to say that may not end up meaning squat.

Then White House Counsel Don McGahn is Kavanaugh’s wing-man

One aside: you will note at that hearing (as illustrated by the photo above), sitting directly behind Kavanaugh, to his left, is former White House Council Don McGahn, who’s kind of become a bit of a hero of late to some liberals, because he refused to fire Special Counsel Robert Mueller, at President Trump’s direction, and then refused to lie about it, also at Trump’s direction. Trump denies all this, and says of McGahn: “Never a big fan!” But this photo underscores McGahn’s most important role in the Trump White House. He’s considered the architect — along with Senate Majority Leader Mitch McConnell — of Republicans’ highly successful push to get hundreds of new Conservative judges confirmed to federal courts. With Kavanaugh as the cherry on top.

OK, back to the exchange with Feinstein we’re focusing on today: Kavanaugh refers to, and makes much of the Supreme Court’s ruling in a 1992 case called “Planned Parenthood v. Casey”. But this may be a little bit of a red herring.

Because while Planned Parenthood v. Casey strengthened Roe v. Wade by affirming it, it also weakened it in some ways. Yes, the fact that it was upheld served as an important milestone and at least temporarily reduced the chance that it would be overturned in the future (although did not eliminate that chance). At the same time, by redefining the standards by which complying with Roe v. Wade is measured, it also may have set a precedent for the court to re-redefine those standards at some point.

In fact, Planned Parenthood v. Casey gave states new leeway to intervene in abortion access in all stages of pregnancy “reasonable regulation by the state”, as long as it didn’t put an “undue burden” on the woman seeking the abortion. In that specific case, that meant while upholding the basic principles of Roe v. Wade, the state of Pennsylvania could require a 24-hour waiting period, and parental consent for minors seeking abortions. (The Court struck down a spousal notice provision.)

But has the definition of “undue burden” changed? Or “reasonable regulation by the state”? Or could “undue burden” not be the standard for measuring whether states are in compliance with Roe v. Wade in the future?

What this could mean is Kavanaugh could actually technically stick to his word, and be part of a ruling that “upholds” Roe v. Wade, but redefines the definition of “undue burden”, or changes to some other standard altogether.

How will we know if any of that might be in the works? That’s simple: if the Supreme Court decides to take up any of the cases that will invariably arise from these new laws. Because based on previous Supreme Court decisions, lower federal courts are likely to block those new state laws from going into effect. If the Supreme Court agrees that Roe v. Wade should be upheld as is, all it most likely will have to do is refuse to hear those cases. So the court deciding to go ahead and hear one or more will be a strong indication that some Justices want to change something.

Why are we singling out Justice Kavanaugh today? Because the Justice he replaced, Anthony Kennedy co-authored the majority opinion in the case we’ve been talking about that upheld Roe v. Wade in the first place.

President Trump long ago predicted an end to Roe v. Wade, saying abortion access will be up to individual states. And Alabama voters already passed a ballot measure last year that would effectively make abortion completely illegal in the state should Roe v. Wade be overturned.

Despite the lopsided vote this week: 25–6 in the Alabama Senate, the new abortion law didn’t just sail through, and identified some courageous and innovative lawmakers in that state. Perhaps most notably, Democratic State Senator Vivian Figures, who introduced amendments to make legislators who voted in favor of the law responsible for paying the massive legal fees that are sure to pile up for one of the poorest states in the country, as the law makes its way towards the Supreme Court. (She also proposed making vasectomies felonies). Those were voted down, but if you’re looking for a sliver of a silver lining, she’s established herself as a force to be reckoned with, both in Alabama and perhaps now on a national stage.

So have activist groups like The Yellowhammer Fund, which describes itself as dedicated to providing “funding for anyone seeking care at one of Alabama’s three abortion clinics and will help with other barriers to access.” It’ll soon be operating in a far more perilous atmosphere.