Abortion restrictions have been the subject of a lot of state legislation in the South recently. This issue seems likely to end up before the U.S. Supreme Court in the next few years. Because abortion is not mentioned in the U.S. Constitution, it appears that the new majority of 5 “textualist” Justices on the Court believe it should be an issue for the people in each of the states to decide under the often overlooked 10th Amendment to the U.S. Constitution. It provides that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
If Justice Thomas has his way, the “new” U.S. Supreme Court, with the addition of Justice Gorsuch and Justice Kavanaugh in the last two years— conservatives both appointed by President Trump—and the departure of Justice Kennedy, a moderate “swing” vote, may overrule or significantly limit its 1973 Roe v. Wade decision. That would send the abortion debate back to the states.
In May of this year, the U.S. Supreme Court partially decided a case called Box v. Planned Parenthood of Indiana and Kentucky. It concerns an Indiana law that does two things. First, it prevents incineration of fetal remains following an abortion along with “surgical byproducts” like infectious waste and needles. A lower federal appellate court struck down that part of the law as not “legitimate.” The Supreme Court reversed that ruling, holding that “a State has a legitimate interest in proper disposal of fetal remains.” The Court also held that “Indiana’s law is rationally related to the State’s interest in proper disposal of fetal remains.” Therefore, it upheld the first part of Indiana’s law.
Second, the Indiana law prohibits the knowing provision of sex, race, and disability selective abortions. The Court did not decide whether that part of the law is constitutional, relying on the fact that only one lower federal appellate court has “addressed this kind of law. We follow our ordinary practice of denying petitions insofar as they raise legal issues that have not been considered by additional Courts of Appeals.” Therefore, the Court did not decide the merits of the constitutional challenge to the second part of the law.
In a concurring opinion, and concerning the first issue, Justice Thomas stated: “I would have thought it could go without saying that nothing in the Constitution or any decision of this Court prevents a state from requiring abortion facilities to provide for the respectful treatment of human remains,” noting that the Court already decided that precise issue in 1983. (A concurring opinion is a written opinion by one or more Justices which agrees with the decision made by the majority, but states different (or additional) reasons as the basis for his or her decision. They are not binding precedent, but Justices sometimes use them to signal that he or she is open to certain types of test cases that would facilitate the development of a new legal rule.)
Justice Thomas then wrote separately in his concurring opinion in the Box case “to address the other aspect of Indiana law at issue here—the sex selective and disability abortion ban.” He discussed the history of eugenics at length, including its assumption that Africans are an inferior race who should be suppressed. (Eugenics is a set of beliefs and practices that aim to improve the genetic quality of a human population by excluding certain genetic groups judged to be inferior, and promoting other genetic groups judged to be superior.) Justice Thomas noted that Planned Parenthood founder Margaret Sanger acknowledged the “eugenic potential” of abortion by recognizing that it can secure “the elimination of the unfit.”
Justice Thomas wrote that Indiana’s “law and other laws like it promote a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics.” He stated that “this case highlights the fact that abortion is an act rife with the potential for eugenic manipulation,” noting that “abortion can easily be used to eliminate children with unwanted characteristics.” He concluded as follows: “Although the Court declines to wade into these issues today, we cannot avoid them forever. Having created the constitutional right to an abortion, this Court is dutybound to address its scope,” adding that “the Constitution itself is silent on abortion.”
A Supreme Court Justice who refers to abortion as a constitutional right the Court “created” that may lead to eugenics, and refers to the subjects of abortions as “human” and “children,” is obviously not a fan of Roe v. Wade.
This June, Justice Thomas and Justice Gorsuch cast more doubt on the status of Roe through a case called Gamble v. United States. (It addresses the “double jeopardy” clause of the U.S. Constitution.) What matters is that Justice Thomas wrote a concurring opinion about the proper role of the doctrine of “stare decisis” (following case law precedent) in the Court’s decisions. He said “the Court’s typical formulation of the stare decisis standard does not comport with our judicial duty” because it “elevates demonstrably erroneous decisions” over “the text of the Constitution.” It gives the appearance of “respectability to our continued application of demonstrably incorrect precedents.” He emphasized the restrained role of the Court, which interprets and applies but does not make law, and said it “should restore our stare decisis jurisprudence to ensure that we exercise mere judgment,” which “can be achieved through adherence to the correct, original meaning of the laws we are charged with applying.” If “the Court encounters a decision that is demonstrably erroneous,” meaning one that is “not a permissible interpretation of the text” of the Constitution or a statute, the “Court should correct the error.” When “faced with a demonstrably erroneous” precedent, “my rule is simple: We should not follow it.” Calvin Freiburger, writing for the prolife website Lifesitenews, stated that “supporters and opponents of abortion both took the opinion as a thinly-veiled swipe at Roe, which defenders say should be upheld because it’s stood for 46 years and been reaffirmed repeatedly, despite the fact that numerous pro-abortion scholars admit its original legal reasoning was deeply flawed.”
Also in the Gamble case, Justice Gorsuch dissented from the majority’s decision to follow the Court’s over 100 years of precedent on the constitutional issue before it. He stated, like Justice Thomas, that “stare decisis has many virtues, but when it comes to enforcing the Constitution this Court must take (and always has taken) special care in the doctrine’s application. After all, judges swear to protect and defend the Constitution.” He further wrote that stare decisis is “at its weakest when we interpret the Constitution. In deciding KaempfLawFirm.com 11 whether one of our cases should be retained or overruled, this Court has traditionally considered the quality of the decision’s reasoning.” As highlighted by Justice Thomas in the Box case this year, the “Constitution itself is silent on abortion.”
So, legal commentators believe Justice Thomas and Justice Gorsuch made these statements in the Gamble case this year in an attempt to lay the foundation for overruling Roe. It remains to be seen whether the Court’s three other generally conservative Justices (all appointed by Republican presidents like Justice Thomas and Justice Gorsuch)—Chief Justice Roberts, Justice Alito, and Justice Kavanaugh—will join Justice Thomas and Justice Gorsuch to create a controlling majority of five Justices in favor of limiting or overturning Roe.
Court watchers anticipate that the Court will agree to take one or more cases related to abortion restrictions in the coming years. This may occur because of the passage of new abortion limits in several states that seem designed to trigger a Supreme Court battle over Roe. New laws in Louisiana and Georgia ban abortions after a fetal heartbeat can be detected— about six weeks into pregnancy. Alabama went even further this year, passing a near-outright ban on all abortions at any time during pregnancy, even in cases of rape or incest.
The fate of Roe likely comes down to Chief Justice Roberts, a Catholic who was appointed to the Court by President George W. Bush, like Justice Alito, also a Catholic, as are Justice Thomas and Justice Kavanaugh. Justice Gorsuch was raised Catholic but now attends the Episcopal Church.
In 2007, Chief Justice Roberts voted to uphold a late-term abortion ban. Court watcher Dylan Scott, writing for Vox last year, noted that Chief Justice Roberts is “mindful of the Court’s institutional reputation. That may be one reason for the Chief Justice to avoid overturning Roe all at once. But he should have plenty of opportunities to chip away at abortion rights until there is little left.” The “most likely 12 KaempfLawFirm.com path under Roberts seems to be an incremental process of narrowing abortion rights piece by piece. A splashy, dramatic, and wholesale reversal of Roe is not really in keeping with Roberts’ modus operandi.”
Chief Justice Roberts, like every Chief Justice, cares about his legacy—the “Roberts Court.” It appears he does not want it to be seen as an “activist” Court. His vote with the Court’s four liberal members against a constitutional challenge to the Affordable Care Act in 2012 is often cited as the key example of this. But deferring to the decision of two other co-equal branches of government to enact legislation is one thing, which shows the restraint generally expected of the judicial branch.
However, it is the role of the Supreme Court to say what the law, including the Constitution, means, and in that role, it has much broader and legitimate power. So, holding that the Constitution does not mention or protect the right to an abortion is less “activist” than the Court striking down a statute.
Yuval Levin, Director of Constitutional Studies at the American Enterprise Institute, wrote last year that Chief Justice Roberts is the “new swing vote on the Court,” and “litigants who want the Chief on their side in a divided Court will work hard to present their desired outcomes as the less activist moves for the Court.” Concerning abortion, Mr. Levin believes “we can expect strategists on all sides to seek out cases and pursue litigation in ways that will present their views as the less aggressive, more incremental, and more restrained of the options before the Court.” This “might enable the Court to chip away at Roe in the name of a restrained federal judicial role rather than in the name of an aggressive assertion of judicial authority.”
This year, Legal Fellow Elizabeth Slattery of the Heritage Foundation said Chief Justice Roberts is “a minimalist and a proponent of judicial restraint, so he takes a very baby-steps approach to the law. I don’t think we’re going to see a serious departure from his past jurisprudence.”
Mr. Levin also believes “there is no question that a Supreme Court with John Roberts at its center would stand to the right of one with Anthony Kennedy at its center.” But rather than assume that replacing Justice Kennedy with Justice Kavanaugh “will mean that in every case in which there were four justices to Kennedy’s right there will now be an easily predictable majority of five, we should think about where the Court’s swing vote will now be found. And the answer seems very likely to be the less-than-simply-predictable Chief Justice.”
As stated by Melissa Quinn in The Washington Examiner this year, Court watchers believe Chief Justice Roberts “now sits in the middle of the Court and is working to shield it from accusations the Justices are politically motivated.” But if issues “like abortion do come before the Court, they don’t expect Chief Justice Roberts to offer any surprises.” When “the rubber hits the road,” said Ilya Shapiro of the Cato Institute this year, “his views are clear, and that’s not going to change.”
As noted, in the Box case this year, Justice Thomas highlighted the fact that the “Constitution itself is silent on abortion.” So, holding there is no federal constitutional right to an abortion, and sending this issue back to the states and their citizens to decide, is consistent with the often overlooked 10th Amendment. There are two sides of the abortion debate, of course. The author’s intent is not to demonize anyone. But regardless of what side one is on, is it really surprising that, on an issue where the U.S. Constitution is silent, the people of Alabama, for example, want abortion to be illegal, but the people of Massachusetts, for example, want it to be legal? Should nine unelected Justices in Washington D.C. with life tenure decide this issue for all of us, or the residents of each state, directly or through their elected representatives?
A civics lesson should be kept in mind. Abortion stands in stark contrast with the right of all people, thus including minorities, to be treated equally. That is expressly stated in the Fourteenth Amendment to the U.S. Constitution. It provides that “no state shall deny to any person within its jurisdiction the equal protection of the laws.” Therefore, in 1954, the U.S. Supreme Court held unanimously in Brown v. Board of Education that state-sanctioned segregation of public schools violates the 14th Amendment. In doing so, it effectively overruled its 1896 decision in Plessy v. Ferguson. That case upheld the constitutionality of racial segregation laws for public facilities as long as they were equal in quality—a doctrine that came to be known as “separate but equal.” This also shows that the Court has the right to and will overrule a prior decision when it concludes it was wrongly decided.
But unlike “the equal protection of the laws” mandated in the express terms of the Constitution that supports the Brown decision, and as recognized by Justice Thomas in the Box case this year, the “Constitution itself is silent on abortion.” Thus, under the 10th Amendment, that means it is an issue for the states to decide.