Political elites on the left have a history of telling the public that whether the Constitution protects abortion is an open question. Raising the specter of Roe v. Wade being overturned or gutted is a time-honored tactic for rallying the base. But with the Supreme Court hearing Whole Woman’s Health v. Hellerstedt today and Justice Antonin Scalia’s death turning constitutional interpretation into a campaign issue, it is time to abandon the defeatist rhetoric. Claiming that the right to abortion is on shakier legal ground than it actually is undermines established protections, because the way the Supreme Court interprets the Constitution tends to be consistent with how the public does.
Recent changes in Supreme Court doctrine brought to us by conservatives illustrate how much the public’s view of the Constitution matters. In the 1970s, gun rights proponents decided the right to bear arms wasn’t just for well-regulated state militias. Movement lawyers developed a new reading of the Second Amendment that NRA activists, movie stars and Republican politicians repeated for decades. Eventually the public came to believe the Constitution guaranteed an individual right to bear arms, despite the Supreme Court having long held it did not. Then, in the 2008 case Heller v. District of Columbia, the court adopted an interpretation in line with the public’s and struck down D.C.’s handgun ban. Justice Scalia’s opinion flipped the understanding of the Second Amendment: Individuals have the right to bear arms but (sorry, militias) not the ones you’d need to fight a tyrannical federal government.
The challenge to the Affordable Care Act showed how quickly this process can occur. When libertarian academics first floated the argument that requiring individuals to purchase health insurance violated the Commerce Clause, most legal scholars thought it was laughable. They refined the argument on blogs and op-ed pages, while Republican politicians took it viral. It became so accepted that not only did news organizations initially report that the ACA had been struck down, but five justices adopted the Commerce Clause argument that had been considered frivolous only three years prior. After widespread argument over the right to be free from government-mandated broccoli, both Chief Justice John Roberts and Justice Ruth Bader Ginsburg felt obliged to address it in their opinions upholding the mandate.
But unlike conservatives making constitutional demands without precedent to back them up, liberals do the opposite—telling the public they’re unsure whether the Constitution protects abortion, no matter how many times the court says it does.
In 1992, the country was amid a presidential election and Planned Parenthood v. Casey was at the Supreme Court. Reproductive rights advocates, hoping to build support for Democratic candidates and the Freedom of Choice Act, told the public the court was about to overturn Roe.
Instead, Justices Sandra Day O’Connor, Anthony Kennedy and David Souter authored a plurality opinion holding that a woman’s right to terminate her pregnancy before viability “is a rule of law and a component of liberty we cannot renounce.” The Fourteenth Amendment liberty rights that protect it—the right to bodily integrity and the right to make fundamental decisions about family—were recognized by the court long before Roe.
Casey did, however, uphold regulations requiring counseling, a waiting period and parental involvement for minors seeking abortions. Perhaps due to pro-choice leaders framing abortion as a family-privacy right—on the advice of pollsters—and downplaying a woman’s right to personal autonomy (as Will Saletan documented in Bearing Right), even people who identified as pro-choice saw these paternalistic restrictions as reasonable and constitutional.
But when Casey came down, pro-choice leaders told the public Roe might as well have been overturned. Prominent liberals have repeated the story that Casey is worthless and Roe’s days are numbered in the decades since. Fear is a good way to get people engaged, but it’s dangerous to say your rights aren’t secure under current doctrine because people might believe you.
Today, we are again in the middle of a presidential election with an extremely important abortion case at the Supreme Court and liberals warning of doom: If a Republican president is elected, we probably just celebrated the last anniversary of Roe. The court’s decision in Whole Woman’s Health may end legal abortion in red states. Roe could be dead by June.
Whole Woman’s Health challenges two provisions of Texas’ omnibus abortion bill known as HB2. The bill would close any clinic that isn’t an ambulatory surgical center and prohibit doctors without hospital admitting privileges from performing abortions for no medical reason. Ten clinics, at most, would remain if the provisions are upheld, making ending a pregnancy a Sisyphean ordeal for women who live hundreds of miles from a clinic.
Commentators on the left tend to acknowledge that these are bogus health regulations meant to shut down clinics, but treat whether they are constitutional under the court’s precedent as a close question. It is not.
Casey allowed states greater leeway to regulate abortion so long as those regulations do not place an “undue burden” on the woman’s right to end her pregnancy before viability. Laws encouraging women to give birth must be “calculated to inform the woman’s free choice, not hinder it” because the ultimate decision remains hers. Though Casey was primarily about laws purported to promote the state’s interest in potential life rather than women’s health, the justices anticipated the strategy of using “unnecessary health regulations” to make ending a pregnancy arduous and expensive and said that would be a no-go.
The undue burden standard isn’t a paragon of clarity, but it isn’t as useless as critics say it is—and abortion opponents want it to be. Whole Woman’s Health is an easy case. Legal scholars—including leading conservatives who have argued Roe was wrongly decided—have explained that the appellate court’s decision upholding the challenged provisions of HB2 cannot be squared with Casey.
But rather than saying HB2 is blatantly unconstitutional and the court needs to strike it down, liberal politicians and commentators keep telling us to be afraid. Hillary Clinton says she’s worried. But instead of fretting, the nation’s most famous woman lawyer might consider reminding the public that the Constitution protects a woman’s right end to her pregnancy without undue interference from the government and explaining that the court’s precedent does not allow the catastrophe HB2 would be for Texas women.
Some commentators imply that whether HB2 violates Casey is barely relevant to the outcome of the case because swing vote Justice Kennedy thinks abortion is immoral, or holds patriarchal views toward women, or is just an unprincipled guy. Jeffrey Toobin tells us there is “every reason to believe” Kennedy will vote to uphold HB2 as though no law applies or Kennedy is likely to ignore it. Those who hold a low opinion of Justice Kennedy could at least do us the favor of holding him accountable by acknowledging that he would have to upend his own opinion in Casey to uphold HB2.
That is not likely. The portions of the Casey opinion that explain how constitutional protections for abortion are much broader than the right to privacy are commonly attributed to Justice Kennedy. Casey is the foundation of Kennedy’s liberty jurisprudence protecting gay rights.
Even the conservative justices might vote to strike down HB2. This isn’t an abortion case in the typical sense—the state of Texas denies the challenged provisions are meant to protect fetal life. The idea that the state can regulate you out of business as long as it makes some implausible claim about health and safety should alarm conservatives. Anyone who cares about the Constitution and the rule of law should be appalled by a state using obviously pretextual laws to so severely curtail a constitutional right. At the time of this writing, FantasySCOTUS predicts that nearly every justice will vote to strike down HB2.
So what’s so bad about scaring the base a little if the case is a winner and everyone will be pleasantly surprised?
The immediate problem is that if the public believes that the court upholding HB2 is a likely possibility, rather than the radical departure from precedent it would be, the justices have more room to maneuver. It will look like a nice compromise to strike down HB2 because it is unusually flagrant and harmful, but fail to define the undue burden standard in a way that provides meaningful protection against an array of current and future attacks on abortion access.
As Judge Richard Posner explained in an opinion striking down Wisconsin’s admitting privileges requirement, a burden is undue if it is “disproportionate or gratuitous.” Even a slight burden imposed by a health regulation that does not address a legitimate safety issue should be considered undue. Yet, liberals help abortion opponents move the goalposts in the opposite direction by repeating the unsupported claim that Casey allowed states such vast freedom to burden women that HB2 just might fly.
The larger problem is that after decades of similar hyperbole, we have a discourse on abortion that proceeds as though there are no constitutional boundaries.
Treating Roe being overturned as a credible threat has obscured the actual attacks on abortion in this country—which are on its availability and affordability, not its legality. Worse, this story perpetuates the conservative narrative that there is something illegitimate about the right. If Roe can be overturned any minute or has already been gutted, then it isn’t a real constitutional right and no abortion restriction is off the table. Roe alarmism is an effective way to amass votes, donations or pageviews, but it contradicts the reality that abortion opponents are “foreclosed from using the machinery of government to ban abortions in early term,” as Justice Kennedy has put it. The court has said abortion opponents may use persuasion but not the force of law to stop a woman from having an abortion, but liberals keep encouraging the public not to take that seriously.
More than 40 years after Roe, Republican presidential candidates debate various unconstitutional abortion policies while Democrats indulge them. Engaging the merits of proposals that are off the table as a matter of longstanding precedent by calling out callousness towards rape victims or explaining the tragic medical reasons women need abortions after 20 weeks only legitimizes the false notion that there is no settled law when it comes to abortion. Every 20-week ban challenged in court has been struck down and the Supreme Court recently declined two invitations to reconsider the viability line without a single justice publicly dissenting. If liberals can’t even articulate the bright line rule that pre-viability bans are unconstitutional, they aren’t going to get the public to understand that less absolute barriers are the real threat, and equally unconstitutional.
No one is proposing we ban handguns because it is understood that would violate a right only recently recognized by the Supreme Court. For abortion to become an accessible medical service instead of a wedge issue, liberals need to stop calling the existence of the right into doubt. They should start talking about abortion like the well-established right “central to personal autonomy and dignity” that the court has held it is—and demanding legal protections befitting of it.
Photo courtesy of Flickr user Mark Fischer licensed under Creative Commons 2.0