It’s not just Roe v. Wade: How the future Supreme Court could gut abortion rights
By Talcott Camp
Now that President Donald Trump has nominated Brett Kavanaugh to replace Justice Anthony Kennedy on the Supreme Court, it will be up to the Senate to fully vet him so that the American people can determine whether he will uphold the basic civil rights and liberties relied on by everyone in this country. This is particularly true when it comes to abortion rights, where Kavanaugh’s prior opinions on the subject, coupled with the fact that Donald Trump vowed to only nominate justices who would overturn Roe v. Wade, give rise to serious concern about women’s continued ability to access abortion if Kavanaugh is confirmed.
The ACLU as a matter of policy does not endorse or oppose nominees to the Supreme Court. But we do think it’s essential, given Trump’s promise, that any nominee is questioned extensively and directly about his or her commitment to the 45-year-old precedent of Roe v. Wade.
Some background is in order. Roe v. Wade made abortion legal in all 50 states by holding that politicians cannot constitutionally ban abortion — except after the point in pregnancy at which the fetus could survive outside the woman’s body. The 1973 decision nullified abortion bans across the country, but it provided imperfect protection for abortion access. Shortly after the decision, the Supreme Court held that politicians may exclude abortion coverage from Medicaid and may require parental or judicial involvement in a minor’s abortion decision. Those rulings cruelly placed abortion out of reach for many people — especially low-income women and, disproportionately, women of color.
Then, in 1992 in Planned Parenthood v. Casey, the Supreme Court opened the door to myriad additional restrictions on abortion access. In that decision, the court reaffirmed the core holding of Roe — that politicians cannot ban abortion — but ruled that states may restrict abortion as long as those restrictions do not impose an “undue burden” on a woman’s access.
And restrict it they did: Since 2011, politicians have quietly passed more than 400 abortion restrictions. These include laws that shut down all or most of the clinics in a state under the guise of promoting women’s health. Where possible, women, medical providers, and advocates have challenged these laws — and in many cases, lower courts weighed in on their side. In a critical decision, so did the Supreme Court.
In Whole Woman’s Health v. Hellerstedt, the Supreme Court in 2016 struck down two such laws out of Texas: one law that banned abortion unless the physician had admitting privileges at a local hospital and another that required that physicians perform the procedure in a mini-hospital called an ambulatory surgical center. The five-justice majority, which included Justice Kennedy, relied on the undue burden standard articulated in Casey and ruled that these restrictions were an unconstitutional undue burden because they did nothing to safeguard patient health while shutting down three-quarters of the clinics in the state.
Despite that decision, states across the country continue to pass and defend laws that fail the standard articulated in Roe, Casey, and Whole Woman’s Health. Arkansas and Missouri, for example, are defending laws indistinguishable from the Texas laws the Supreme Court struck down in 2016. But legal advocates have been able to use the Whole Woman’s Health decision to challenge other restrictions, which federal courts have struck down in multiple states. If the Senate confirms a Supreme Court nominee who shifts the balance on the court, and the court overturns Roe v. Wade, many states will ban abortion. By some counts, almost half the states would do so. Seventeen states already have laws on the books to accomplish this swiftly if the Supreme Court overturns Roe.
We would then have a legal patchwork in which large swaths of the South and Midwest lack abortion access with no recourse to federal courts. Certain state constitutions would provide protections as we saw in Iowa, where the state Supreme Court just relied on the state constitution to block a ban on abortion starting at six weeks of pregnancy. But in most of the states where politicians seek to end abortion access, such state constitutional protections are the exception.
But a new Supreme Court Justice could effectively decimate women’s access to abortion, even without overturning Roe outright. A new Supreme Court could uphold nearly unlimited state restrictions — including the kind of clinic shut-down laws from Texas that the court struck down in 2016. In upholding them, the court could say that it is simply applying the longstanding undue burden standard but deferring to legislative determinations of what is medically justified. In that way, the court would end abortion within the states that pass them — as surely as if the court had overturned Roe and allowed politicians to ban abortion explicitly.
In seven states, there is just a single women’s health center left providing abortion care. The only thing stopping politicians in those states from shuttering those clinics with faux health regulations is the federal judiciary, and if the balance on the Supreme Court shifts against abortion rights, there will be nothing stopping them.
Given the high stakes of filling Justice Kennedy’s seat, it’s imperative that senators press Brett Kavanaugh on whether he intends to protect a woman’s right to real access to abortion. If they don’t do their job, the impact could well be dire, and marginalized communities will pay the steepest price.
Talcott Camp works for the ACLU Reproductive Freedom Project.
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Although the photo included with this opinion piece may be an accurate representation of what an aborted fetus might look like, I think that it does readers no favor to bias their opinion before they even have a chance to read the article. I’m surprised that the SUIndependent would publish such a graphic photo with an opinion piece that clearly does not oppose abortion. To taint readers’ views with such a photo seems unfair to the author of the piece. Abortion is a complex matter. It’s not just a matter of the child’s life although that’s a critical component of the discussion, too. There are many factors that play into a woman’s decision to have an abortion. I’m not a supporter of abortion generally but do understand that it’s complex.
Hi Lisa, thanks for the comment. Contributors are always given the opportunity to choose their own image. When they decline to do so, I have to find something suitable for them.
You’re right, the image is graphic. But in my view, this photo shouldn’t bias anyone one way or another because it’s realistic. What Talcott Camp argues in favor of allowing, for better or for worse, is precisely what is depicted in this image. It doesn’t show an aborted fetus in any way that is worse than it would look in reality, nor does it show a woman happily traipsing in a field amid the gravestones of her aborted children; rather, it’s an objective medical photo of an abortion, neither sugarcoated nor portrayed as anything worse than what it truly is. If this were a photo of an abortion done in an alley with a rusty hanger, or an illustration of a Democratic senator feasting on dead babies, or a still from a video wherein the fetus is decapitated in the womb or it’s limbs torn off during extraction, I’d certainly see your point about bias.
To me, the argument that a photo showing what the aftermath of an abortion actually looks like is somehow unfair to either side of the argument seems to suggest that pro-choice activists are somehow unaware that this is what a dead fetus looks like. That argument would then seem to suggest that we should shield people from the reality of what is being killed during an abortion, as if they don’t already know. I can only assume in good faith that pro-choice activists are fully aware that this is what an aborted fetus looks like, and given that assumption, I see no bias one way or another. And as you rightly mention the complexity and gravity of the matter, it only seems appropriate not to pull punches when discussing it. Furthermore, I have yet to hear a complaint from Mr. Camp, whose argument, if sound, surely stands on its own merits.
Thanks for your comment. I appreciate your position on this, Jason, but the fetal photo used shows a fetus that is much more developed than a fetus of 6-10 weeks. Women I’ve known who have had abortions have had them soon after discovering they were pregnant. The photo used looks more like a late-term aborted fetus and is not the norm. “Nearly 99% of abortions occur before 21 weeks, according to the Centers for Disease Control and Prevention, but when they are needed past that point, it is in response to harrowing circumstances.” We will just have to disagree about the appropriateness of using the photo. It’s a difficult topic.