The Supreme Court stands ready to turn the clock back
By Anil Madan
In 1973, the Supreme Court of the United States declared in the famous and oft-cited case Roe v. Wade, that a State may not enact an absolute prohibition on abortion. A woman has a constitutional right to terminate her pregnancy before viability.
The Supreme Court of Mexico has just declared that criminalizing abortion is unconstitutional. It is ironic that, to paraphrase Neil Armstrong, as Mexico’s judiciary takes one small step by judges to give womankind a giant leap into the 21st Century, we have five US Supreme Court judges stepping backwards over the puddles to antediluvian times and not enjoining the effectiveness of the Texas law that impedes and negates the constitutional rights of women.
Supporters and opponents of abortion demonstrating outside the U.S. Supreme Court building, Washington, D.C., 1989. Pic – Britannica
In Roe v. Wade, at the same time as the Court declared that the right to terminate a pregnancy may not be impeded by undue interference from a State, it also balanced the interests of the State in limiting abortions after fetal viability and protecting the health of the mother and the unborn fetus.
Since then, right-wing America spurred on by the hierarchy of the Catholic Church and assorted fundamentalist and Evangelical Christian cohorts, has gone nuts and started a modern-day Crusade against abortion. Right-wing politicians, seeing an opportunity to exploit an imaginary war against liberalism and the left, pounced and an issue that might otherwise have been of little consequence, has become a major political force in American life. Candidates for public office at the federal level, whether for President, Senator or Congressional Representative and at every local and municipal level, often shape their messages around a staked-out position on abortion.
Indeed, if there is any one single issue that has transformed the federal judiciary and the US Supreme Court into political footballs, it is abortion. When Republican Senator Mitch McConnell was the Majority Leader in the Senate, he refused to even meet with President Obama’s nominee (Merrick Garland who is now the US Attorney General in the Biden Administration) to replace Justice Scalia, much less give him a hearing on his nomination. Despite the cynical abandonment of his duty, McConnell found solace and support in the fact that his position was essentially an anti-abortion one.
McConnell correctly calculated that he might have a Republican President in office to nominate judges more appealing to the right-wingers in his party. As it turned out, President Trump was elected and got to nominate three justices in total, a staggering number for any President to get in one term. This allowed the Supreme Court to tilt to a decided right-wing bias as six of the nine justices are fairly characterized as right-wing yahoos with Chief Justice Roberts being the occasional voice of reason, a welcome execution of his responsibility as CJ to maintain the institutional integrity of the court.
A woman’s right to abortion
In the years since Roe v. Wade was decided, right-wing dominated legislatures in state after state have obsessed with trying to overturn the strictures of that Supreme Court decision. So far, every effort by a State to limit a woman’s right to abortion has been rebuffed by the courts, and where cases have reached it, by the Supreme Court. Despite the fact that Roe v. Wade should be considered settled law, the right-wing legislators keep on trying to upend its ruling.
Recent developments suggest that the landscape has changed enough that Roe v. Wade may be in danger. The first and most obvious development is that the Supreme Court now has six judges considered “conservative” including three nominated by Trump. That alone would not be dispositive because the Supreme Court generally follows its previous precedents barring compelling reasons to overturn established law. This is known as the doctrine of stare decisis (to stand by things decided). If the justices were being intellectually honest, they would simply say Roe v. Wade is settled law and move on. Unfortunately, politics has invaded the judiciary.
Let me repeat that the underlying holding of Roe v. Wade has been upheld and reinforced by the Supreme Court. It is, as of this writing, the law of the land. In 1992, in the case of Planned Parenthood of SE PA. v. Casey, Justice Sandra Day O’Connor who had been appointed by Ronald Reagan, wrote:
“It must be stated at the outset and with clarity that Roe‘s essential holding, the holding we reaffirm, has three parts.
“First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure.
“Second is a confirmation of the State’s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman’s life or health.
“And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each.”
In June 2020, Chief Justice Roberts writing a concurring opinion in the case of June Medical Services LLC v. Russo, wrote that the Casey case “reaffirmed ‘the most central principle of Roe v. Wade,'” “a woman’s right to terminate her pregnancy before viability.”
So, here we are a little more than one year later and Texas has enacted a statute that makes abortion illegal at any time after a so-called fetal heartbeat has been detected. The law holds abortion providers (usually physicians) liable if they fail to try to detect this so-called fetal heartbeat. In effect, this means that most abortions will not occur after the first six weeks of pregnancy, an interval during which most women don’t even know if they are pregnant. The upshot is that Texas may have found a way to impinge on the constitutional right.
The question is whether the Texas statute is unconstitutional.
The words of Chief Justice Roberts merit attention because he dissented in the case of Whole Woman’s Health v. Hellerstedt, a 2016 case involving a different attempt by Texas to deny the right to abortion. Nevertheless, Roberts explained that the doctrine of stare decisis is controlling. He wrote:
“In Whole Woman’s Health, we quoted Casey in explaining that a statute which, while furthering a valid state interest has the effect of placing a substantial obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its legitimate ends.”
He further explained: “We added that unnecessary health regulations impose an unconstitutional undue burden if they have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion.” He concluded, “Stare decisis instructs us to treat like cases alike. The result in this case is controlled by our decision four years ago.”
Well, not so much, the right-wing justices of the Supreme Court. The latest Texas statute, as noted, makes abortion unlawful after a so-called fetal heartbeat is detected. The Texas statute, however, prohibits state officials from enforcing its provisions.
Normally, such a provision would make the statute a nullity since there would be no enforcement mechanism for its violation.
However, the right-wing yahoos in the Texas legislature came up with a devious scheme. They have authorized members of the public to bring actions against abortion providers as well as anyone who aids or abets a woman in procuring an abortion. A successful suitor is entitled not only to recover his/her attorney fees, but also gets a $10,000 bounty.
The Supreme Court by a 5-4 vote, with the right-wing yahoos ex Roberts, voting in favour, have refused to issue an injunction that would prohibit the Texas statute from taking effect.
Whereas it is true that the five-justice majority did this on procedural grounds, the practical effect is that many abortion clinics in Texas could go out of business and a HUGE disincentive for abortion providers will impede the provision of their services to women until the legal issues are resolved.
The situation now is hit or miss. A Texas state court judge has enjoined some anti-abortion groups from suing medical providers under the provisions of the new Texas law.
It is clear that Justice Clarence Thomas believes that Roe v. Wade was incorrectly decided and that there is no constitutional right to abortion, stare decisis be damned.
The position of the newest justice, Amy Coney Barrett is not known but like that of Gorsuch and Kavanagh is presumed to be hostile. So also, Justice Alito.
The Supreme Court stands ready to turn the clock back.
* Published in print edition on 14 September 2021
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