Since the year I was born, Roe v. Wade has been the most controversial legal case in the United States.
In general, the case holds that unduly restrictive state regulation of abortion is unconstitutional. While Roe has been challenged many times, it has not been overturned.
But, a heavyweight fight looms on the horizon as the country’s abortion rate has been dropping.
The U.S. Centers for Disease Control and Prevention reported last November that the number of abortions was at its lowest level in 10 years. For the survey period of 2006-2015, reported abortions fell from 842,855 to 638,169 – down 24 percent.
States have mobilized on the abortion issue by passing laws that some consider to be overly stringent. Recently, Alabama passed what is probably the most restrictive abortion law in the nation.
However, direct challenges are probably years away from any Supreme Court of the United
States (SCOTUS) hearings.
SCOTUS, in general, and Chief Justice John G. Roberts Jr. in particular, prefers a step-by-step
process when shifting the court’s stances rather than disposing of an iconic, landmark ruling in one single case. That would probably hold true here since the case is known to most Americans.
Advocates on both sides are more urgently strategizing over the pending cases that would
establish the terms for the eventual showdown.
The main reason that Roe will be at the forefront of the many internal battles our country faces in the future is the new ideological makeup of the court. The additions of Justices Brett Kavanaugh and Neil Gorsuch have firmly placed conservatives in control on controversial issues.
But, pro-life advocates must focus on Roberts in order to accomplish their goals. Last year’s retirement of centrist conservative Justice Anthony Kennedy arguably placed Roberts at the ideological center/right of the court. He will likely be the “swing vote” in many 5-4 decisions into the future.
The 64-year-old George W. Bush nominee has backed laws that restrict access to abortion.
But, he has also sided with the liberal bloc at times. For example, earlier this year, SCOTUS temporarily stopped a Louisiana law that advocates said would have left the state with only one doctor authorized to perform abortions. Roberts joined the court’s liberals in preventing the law from going into effect – for now.
While Roberts has a centrist/conservative ideology, he does not assert his beliefs as forcefully as the rest of his colleagues.
Roberts has also tried to preserve the concept of precedent. Precedent is established when a case establishes a rule or principle that is then used by lower courts when deciding later cases with similar law or facts. The use of precedent provides predictability and stability in the law.
The accelerating actions in many states reflects President Trump’s opposition to abortion rights and his pledge to appoint justices who oppose abortion rights. With the addition of Georgia Gov. Brian Kemp’s signing of a bill that would ban abortions if a fetal heartbeat can be detected, five states since President Trump took office in 2017 have adopted bans on abortion in a similar manner.
Expect to see other Southern and mountain states to follow this trend.
Abortion activists argue that these laws clash with Supreme Court precedent that forbids an “undue burden” on a woman’s right to end a pregnancy. While that argument has been effective since 1973, don’t expect it to be as persuasive going forward.
Based on the information we have today, the battle over abortion will not be won quickly or with a landmark case overruling Roe.
There will be many battles along the way. Pro-life advocates are in the driver’s seat. Abortion activists have an uphill battle.
If pro-life advocates are patient, do not push Chief Roberts too much and choose the right cases to challenge, Roe v. Wade will be chipped away until there is nothing left.
Jason Swindle is a criminal-defense attorney and college professor in Carrollton.