Comment: What a conservative high court means for abortion

The court won’t necessarily split 6-3 to end Roe, but a majority is likely to endorse more restrictions.

By Mary Ziegler / Special To The Washington Post

Some things about Ruth Bader Ginsburg’s legacy are simple: No one effected more change in the law’s treatment of American women.

But when it comes to abortion, the story is much more complicated. Ginsburg was both the court’s most articulate defender of abortion rights and an outspoken skeptic of the court’s decision in Roe v. Wade. She long believed that the Roe court moved too fast, too soon, and thought its rationale — one based on the right to privacy — was never all that convincing. It might have gone better, she argued, if the court had justified the right to choose by relying on the idea of the equality of the sexes.

The final contradiction of her legacy is that Ginsburg worked to create a sounder, more equality-based foundation for reproductive rights; and that, with her passing, that foundation could fall away for good.

If the Senate confirms Ginsburg’s replacement, that judge will almost certainly be far more conservative than Ginsburg; and may be more conservative than many of the court’s current members. Judges Barbara Lagoa and Amy Coney Barrett have emerged as front-runners for the nomination. Lagoa, an appellate judge from Miami, does not have much of a record on abortion. Barrett, however, was a member of Faculty for Life, an antiabortion group of law professors, when she was serving on the faculty of Notre Dame Law School. If she voted to preserve Roe, it would be a shock.

And if declaring that Roe was wrongly decided is a precondition for a new justice to be confirmed, as some Senate Republicans have vowed, the ideological balance of the court would shift markedly. With an additional staunch conservative on the bench, Chief Justice John Roberts Jr. would no longer have the deciding fifth vote: The liberals would still be in the minority even if he joined them. (There’s no guarantee that he’ll side with them in the future, anyway: He already rewrote the rules of abortion law this summer in a way that makes it easier for the court to pass restrictions.)

The other conservatives on the court have been firmly and expressly antiabortion. Clarence Thomas never wastes an opportunity to call for the overruling of Roe. In his first opinion on abortion since joining the court, Neil Gorsuch echoed long-standing antiabortion talking points about the way that Roe has distorted other areas of law. Samuel Alito Jr. seemed convinced by antiabortion arguments that there is “a blatant conflict of interest between abortion providers and women,” and that abortion damages women’s health.

Instead, the liberals’ best bet might be to try to win over Brett Kavanaugh. Of all the justices who voted to save a Louisiana abortion restriction this summer, Kavanaugh was the most cautious. He argued that the court simply did not have enough information to make a decision and wanted to send it back to the lower court. While some of his conservative colleagues were ready to throw down the gauntlet, Kavanaugh sought to sidestep controversy. Like the chief justice, Kavanaugh seems to have some concern for the court’s reputation as being above the political fray.

But if Kavanaugh is the most winnable vote for the pro-choice side, that isn’t saying much. Any chance that he would join his liberal colleagues seems slim. That’s partly because Kavanaugh has outlined a vision of when the court can dismantle precedents — one that takes into account the supposed “real-world effects” of a decision — which suggests that he would be receptive to arguments that Roe polarized American politics and warped Supreme Court nominations. He also seems confident that the court can rewrite the rules on abortion without overturning Roe outright and triggering a backlash. Thus far, the Supreme Court has struck down only those abortion restrictions that are unduly burdensome, but, as Kavanaugh affirmed in his opinion in the June Medical Services case, the meaning of an undue burden has never been clear. A conservative court could make it all but impossible for abortion providers to prove the existence of an undue burden and probably would uphold many more restrictions.

The antiabortion movement has already teed up any number of cases for a reconstituted court. Today, a state can ban abortion only after viability, the point at which survival outside the womb is possible. Red state lawmakers have plans to change that. A handful have passed “reasons bans” that would outlaw abortion for reasons of race, sex or disability (all before viability): Only patients who could convince the government that their reasons were not suspect would have the ability to end a pregnancy.

Other restrictions target pre-viability abortions by relying on the idea that lawmakers have more leeway when there is scientific uncertainty on a particular question. Twenty-week bans, for example, rely on contested arguments about fetal pain. Recently, GOP lawmakers have launched an attempt to take medication abortion off the market, claiming that the pill was “rushed” to patients. As long as lawmakers can plausibly claim that there is medical disagreement about a specific question, Kavanaugh may be willing to sign off on a ban.

But the effects of a solidly conservative court could go further. It would be easy to assume that the antiabortion movement’s primary aim is to end Roe v. Wade, but when the antiabortion movement first organized, in the 1960s, its goal was a constitutional right to life. By the 1980s, the movement changed tactics, attacking Roe and prioritizing incremental restrictions that the Supreme Court might uphold. This strategy has been ascendant for decades, but the antiabortion movement’s underlying objective has never changed; as evidenced by the explosion of heartbeat bills and absolute bans over the past year in red states. Deep down, foes of abortion have always believed that abortion is murder, wherever and however it occurs. With a conservative enough court, they may insist once again that the Constitution recognizes a right to life.

The irony of where things stand now would not have been lost on Ginsburg. She long asked what might have happened had the Supreme Court reimagined a right to choose. With her death, that right could soon be gone.

Mary Ziegler is the Stearns Weaver Miller professor at Florida State University College of Law and author of “Abortion and the Law in America, Roe v. Wade to the Present.”

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