Pro-lifers continually pray for the reversal of Roe v. Wade. And with many on both sides of the abortion divide now agreeing that the decision is badly flawed, that could happen one day. But what if the overturn comes from the other direction?
The potent possibility of a “reverse reversal” (if you will) hit me while listening to pro-life lawyers discuss the current status of abortion litigation at a University Faculty for Life Association Convention, at which I had been invited to speak. Not being involved with abortion jurisprudence, I was interested to hear about the current state of the law in this contentious field.
Roe and its progeny cases, such as Planned Parenthood v. Casey, left room for pro-life advocates to deploy subversive legislative and litigation strategies that have opened significant cracks in the once unbreachable judicial wall around the abortion right. For example, court rulings have permitted the outlawing of most late-term abortions, a ban on “partial birth abortion,” mandatory waiting periods, ultrasound testing, and building code regulation of abortion facilities—all contributing to a substantial reduction in annual terminations.
Almost as an aside, one of the seminar presenters noted the implacable opposition of Supreme Court Justice Ruth Bader Ginsburg to this limited right to regulate status quo. Ginsburg believes adamantly that women are denied “equal citizen stature” by boundaries placed around access to abortion. Not only that, but in an angry dissent to the 2007 Supreme Court ruling upholding the federal ban on partial birth abortion, she (joined by Justice Breyer among the current justices) railed against the majority allowing “moral concerns” to “override fundamental rights.”
That sounded to me as advocacy for an unfettered right to abortion at any time and for any reason. So, I asked expert anti-abortion attorney Clarke D. Forsythe—the senior counsel for Americans United for Life—whether Ginsburg’s view would abolish all abortion regulation. Yes, he told me: If the right to an abortion were based on “equal protection of the law,” as opposed to other constitutional standards, it would “permit no regulations at any time,” perhaps even, “requiring [government] abortion funding.”
In other words, even though the most well-known anti-Roe efforts are aimed at overturning the case to permit greater state regulation, a significant—if quieter—counter-push seeks to (essentially) overturn Roe by making the abortion right virtually absolute. At the very least, it would repair those cracks in the protective wall.
As an article in the UCLA Law Review supportive of the equal protection standard put it, “Crucially, once the Supreme Court recognizes that people have a right to [abortion] by virtue of equal citizenship,” the right would be “on a stronger legal and political footing,” making it far less susceptible to the current pro-life strategy of “chipping away.”
As if that weren’t enough, I thought about how Roe had permitted some limits on abortion based on the “important and legitimate [state] interest in protecting the potentiality of human life,” an interest that the Court ruled becomes “compelling” at the point of fetal “viability.”
But many powerful voices no longer consider “human life” to be a morally relevant category. For example, the mainstream bioethics movement argues that what matters morally isn’t being “human” but possessing sufficient mental capacities—such as being self-aware—to be considered a “person.” In this view, only persons have a right to life. Since a fetus does not possess personhood capacities at any time during gestation—contrary to Roe—the state has no interest in protecting fetal life even after viability.
Now, add a third element to the equation: Roe was intended to settle the abortion issue once and for all. It clearly didn’t do that. Many frustrated pro-choicers still dream of obliterating all impediments to abortion on demand.
New York Governor Andrew Cuomo’s recently announced plan to permit the termination of viable fetuses to protect the mother’s “health” illuminates the potential path ahead. Roe’s companion case, Doe v. Bolton, defined “health” broadly as including “all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the well-being of the [pregnant] patient.” Replacing “health” for the current life-of-the-mother legal standard for post-viability abortion, Forsythe warns, would harness Doe’s “limitless definition,” resulting in a virtually unlimited late-term abortion license.
Relevant to the overturning of Roe from the other direction, Forsythe says that, “As a matter of policy, Cuomo’s bill would do in New York what Ginsburg’s judicial view would impose across the nation.”
Finally, assume a United States Supreme Court in which Justices Clarence Thomas and/or Antonin Scalia have been replaced by Ginsburg-thinking replacements. A new 5—4 or 6—3 majority could then exist to make equal protection the primary pillar supporting the abortion license, perhaps also installing “personhood” in place of “humanhood” as the relevant legal standard for applying a right to life.
That—and not a pro-life reversal—could be the end of Roe v. Wade.
Wesley J. Smith is a senior fellow at the Discovery Institute’s Center on Human Exceptionalism. He also consults for the Patients Rights Council and the Center for Bioethics and Culture.