This week’s Supreme Court decision on abortion was a huge setback for the pro-life movement. It is possible things are about to get much worse.
Not only did the justices reject the clinic regulations that represented a promising pro-life strategy for curbing legal access to abortion while demonstrating (pro-choice critics would say feigning) concern for women’s health. They did so by a 5-3 margin, meaning the pro-life side would have lost even if Justice Antonin Scalia were still alive.
If Scalia is replaced by a liberal, that suggests a 6-3 majority that is at least broadly sympathetic to the abortion rights regime installed by Roe v. Wade. Roe itself is now 43 years old. For perspective, that’s at least a decade less entrenched than many of the liberal Warren Court precedents when the Senate voted down Robert Bork in 1987.
A liberal-run Supreme Court could deliver an outcome even less pro-life than the status quo. The big question is whether this marks the beginning of an erosion of pro-life gains under Planned Parenthood v. Casey.
That 1992 Supreme Court decision was a major disappointment to pro-lifers at the time. It reaffirmed and further entrenched the core holding of Roe after a dozen years of high court nominees by pro-life Republican presidents who were supposedly going to overturn it.
Pro-choice senators feared Clarence Thomas marked the beginning of an anti-Roe majority, one of the reasons his confirmation hearings were so contentious. Similar concerns led to the borking of Bork. No Democratic president had appointed a justice since Lyndon Johnson in 1967.
Instead the right to abortion survived 5-4, with an opinion written by Anthony Kennedy, the man Ronald Reagan finally settled on after the rejection of Bork and Douglas Ginsburg.
But Casey did give the democratically elected branches of government more room to restrict abortion at the margins, especially at the state level. Pro-life groups capitalized on this new freedom, scoring numerous legislative victories throughout the 1990s and shifting strategically away from a constitutional amendment banning abortion to more incremental anti-abortion measures.
Waiting periods, parental-involvement laws, informed consent and eventually partial-birth abortion bans proved more popular than the human life amendment. The abortion debate was now being waged on terms that measurably improved the popularity of the pro-life position. The laws themselves are believed to have contributed to a drop in abortions.
The fact that a decision that pro-lifers and their Republican fellow travelers widely regarded as a defeat — “The great abortion debate is over,” pro-choice conservative columnist Charles Krauthammer wrote that year — was actually followed by pro-life gains shows you can’t predict the future.
Stenberg v. Carhart, a 2000 decision overturning Nebraska’s partial-birth abortion ban, was a mere blip on the road for pro-lifers. It was followed seven years later by Gonzales v. Carhart upholding a federal partial-birth abortion ban. Perhaps Monday’s Whole Woman’s Health v. Hellerstedt will prove no different in the long run.
Nevertheless, it is possible a more liberal Supreme Court could take away Casey’s underappreciated concessions to pro-lifers. With the right combination of retirements and a Hillary Clinton presidency, and maybe just with a liberal Scalia replacement, the courts could take away pro-lifers’ ability to influence abortion policy much at all.
She won’t need Congress to pass the Freedom of Choice Act that has worried pro-lifers in previous years and the nightmare vacancy required for a Democratic president to reshape the court has already occurred.
If Donald Trump is aware of this possibility, he hasn’t shown it. He has yet to so much as issue a statement on Monday’s Supreme Court ruling. This further added to the already well founded questions about the depth and sincerity of his commitment to the pro-life cause, to which he has only recently converted and with which he shows little detailed familiarity.
With Clinton, however, there is no hope, short of blocking anyone she names to the Supreme Court for four to eight years and then banking on her being succeeded by a pro-life president. That’s an awful lot to count on when decades of pro-life work are conceivably at stake, which is why social conservative leaders visit Trump hat in hand and have generally rewarded whatever positive signals have emanated from Trump Tower since Ted Cruz ended his campaign.
Either way, the prospects for reversing Roe before it turns 50 don’t look very good right now. Pro-lifers will fight on, but their present options are not good.
