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The Court after Scalia: Stark divide means threat to Roe but promise for women’s reproductive justice

Dawn Johnsen is Walter W. Foskett Professor of Law at Indiana University Maurer School of Law.

The effect Justice Antonin Scalia’s eventual successor will have on women’s reproductive rights depends on the outcome of November’s presidential election – an election, of course, that also will determine any other Supreme Court vacancies. Since Justice Scalia joined the Supreme Court in 1986, the dominant reproductive rights question has been straightforward: will the Court uphold or overrule Roe v. Wade? That remains today the vitally important, correct starting point. But that stark, basic question would be followed by more complex and uncertain ones if the election brings Justices who would not follow Justice Scalia’s lead in opposing Roe or its progeny – which notably includes Lawrence v. Texas, Windsor v. United States and Obergefell v. Hodges, five-four decisions that build on Roe’s constitutional understandings in the context of LGBTQ protections.

Here’s a too-little appreciated fact: it has been nearly fifty years since the Court was composed of a majority of Justices appointed by Democratic presidents. A more progressive Court would bring prospects for improved understandings of the constitutional value of equality that would reinforce and deepen the Court’s current protections of individual liberty. In particular, a shift from the current focus on Justice Anthony Kennedy’s particular views on abortion to those of Justice Ruth Bader Ginsburg would expand possibilities for women’s reproductive justice – with an emphasis on both “women” and “justice.”

Thus, as much as for any set of issues the Court will face, the stakes for reproductive rights are huge. This statement is no less true for having been repeated throughout Justice Scalia’s four decades on the Court. For that entire tenure, the Justices divided sharply on what protection, if any, the Constitution affords women against governmental interference with decisions about whether to continue or terminate a pregnancy. Scalia consistently sought to overrule Roe and, of course, failed to achieve a majority for his view that it is the government’s proper role to decide whether to outlaw abortion. But the Court continued to split five to four throughout his forty years, with Scalia sometimes in the majority and sometimes in dissent on the particular abortion restriction before it, depending upon the Court’s composition at the time.

The persistence of this division contributes to what aptly has been described as an abortion fatigue in our political and legal discourse. Certainly there’s a lack of interest relative to the issue’s profound direct effect on the lives of the one in three women who have abortions (most of whom have children). It’s helpful to recall that this division, though longstanding, has not always existed: Roe v. Wade itself was a seven-two decision in 1973 and the Justices did not fall along partisan lines. Among the American public, Republicans at the time supported Roe in larger numbers than Democrats. But as Linda Greenhouse, Reva Siegel, and others have documented, the Republican Party soon saw political opportunity in making Roe and abortion a partisan issue and, beginning in 1980 and through today, expressly sought to overrule Roe through judicial appointments.

Again, the most critical issue post-Scalia is the fundamental one: Roe v. Wade again is at stake in November’s election. Framing the issue so bluntly may invite dispute from some who will cite the Court’s departure from expectations at key past moments, especially the Court’s 1992 decision in Planned Parenthood v. Casey reaffirming the “core” of Roe. The Court’s decision last June in Whole Women’s Health v. Hellerstedt further masks the extent to which Roe itself is on the line, with a five-three ruling (following Scalia’s death) that invalidated a Texas law that imposed onerous requirements on providers of abortion services.

Casey and Whole Women’s Health both point to another important aspect of the post-Scalia future of reproductive rights: the identity of the next president almost certainly will determine whether and for how long Justice Anthony Kennedy retains center stage as the swing vote. Kennedy’s vote was essential to the Court’s Casey compromise, which – although it confounded expectations by reaffirming Roe’s “core” – invited greater restrictions with a new “undue burden” standard of review. Kennedy’s subsequent decisions to uphold abortion restrictions as not unduly burdensome (in dissent in 2000 and in the majority in 2007, on very similar laws) suggested he might do the same in Whole Women’s Health, either by letting stand a Fifth Circuit (mis)application of the undue burden standard that would have shuttered most of Texas’s abortion providers, or by ducking the issue with a remand that would have made enjoining such restrictions much more difficult.

In other ways, too, Whole Women’s Health was reminiscent of Casey: a ruling of major import when measured against either expectations or impact (albeit not as dramatic) – and similarly coming amid a presidential election. Its much-needed clarification of the notoriously variable “undue burden” standard naturally evoked intense relief and celebration by Roe’s supporters and comparably strong despair and condemnation by its opponents. Its preservation of Roe as modified in Casey helps greatly in protecting women from the harms of abortion restrictions enacted under the guise of protecting women’s health. At the same time, both decisions served to disguise just how much depends upon future Court appointments.

We tend to forget just how tenuous Casey’s reaffirmation of Roe’s “core” was. Had Robert Bork been confirmed instead of Anthony Kennedy, Bork almost surely would have provided the fifth vote to overrule Roe. A principal concern behind the Senate’s decision not to confirm Bork was his view that the Court was wrong in Griswold v. Connecticut to protect a fundamental right to use contraception free from governmental prohibition.

To turn more directly and concretely to the two paths ahead, Path One: If we elect a president who will appoint a successor who shares Justice Scalia’s views on Roe, Justice Kennedy would remain the deciding vote pending additional changes in the Court. Precisely how Kennedy would apply the undue burden standard would be uncertain on less compelling facts than existed in Texas (as typically will be the case) – with greater uncertainty yet on abortion restrictions crafted not to focus on women’s health, but fetal protection, a shift abortion opponents announced immediately upon the decision in Whole Women’s Health. (More on that in a moment.)

Far more momentous along Path One would be the next appointment that would displace Justice Kennedy from that key position. Each of our last four Presidents appointed two Justices, and before that President Reagan appointed three Justices. (The ten successive Republican appointments between 1969 to 1992 explain why Democratic presidents have not appointed a majority of Justices since 1969.) To be blunt, the Court’s two sitting Justices over eighty years of age both were in the Whole Women’s Health majority (Justice Stephen Breyer wrote the majority and Justice Ruth Bader Ginsburg a powerful short concurrence), while the three dissenters all are under seventy. (Justice Kennedy is eighty.) Given these realities, the prospect of harm to Roe exceeds the immediate opportunities for progressive change.

What about Path Two: if we elect a president who will appoint Justices who would continue the Court’s protections of women’s reproductive rights? Even just the one more progressive vote that seems in store would open interesting possibilities for progress in understandings of what the constitutional guarantees of liberty and equality mean for women’s reproductive rights and questions of reproductive justice.

One important effect would be to solidify, perhaps for all time, the Court’s rejection of Justice Scalia’s narrow originalism. Scalia saw the regulation of childbearing as an issue for legislatures and not one that implicates fundamental liberty or equality, the definitions of which for him were frozen in the past narrow conceptions of the men who included those foundational guarantees in our Constitution. The Court’s three five-four opinions upholding the rights of gays and lesbians – Lawrence, Windsor, and Obergefell – powerfully exposed the flaw of this impoverished approach, with potential as well for improved understandings for reproductive justice and other vital issues. Writing for the Court, Justice Kennedy forcefully repudiated the approach to constitutional interpretation that Scalia passionately championed:

The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.

In Obergefell, the Court also cited the important, reinforcing relevance of the guarantee of equal protection in interpreting the scope of liberty, holding that “the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry.”

It is Justice Ginsburg, far more than Justice Kennedy, who has appreciated the import for reproductive rights of supplementing the current “liberty” basis with dimensions of equality implicated by governmental restrictions on reproductive rights. With one additional Justice, she could achieve a majority for her deeper understandings, expressed first as a law professor and women’s rights advocate – as when she speculated about possible advantages to an equal protection/sex discrimination understanding of the Constitution’s protection against abortion restrictions – and later on the Court in dissents for four Justices.

In a 2007 strategy memorandum on “pro-life strategy issues,” National Right to Life General Counsel James Bopp (and his law firm associate Richard Coleson) confirmed this potential with warnings that Justice Ginsburg’s equal protection argument would be a “powerful weapon” against a broad range of abortion restrictions. Most significant, he wrote, the government “would likely have to fund abortions that they are not currently required to fund in programs for indigent persons.” That same memo advocated against the enactment of abortion bans, “doomed to failure” with a Court one vote short of the majority needed to overrule Roe, in favor of a host of other “incremental” restrictions that would “shut clinics.”

The future of Casey’s overarching “undue burden” test also would be paramount among several potential changes along this second path. The test, of course, was a compromise minted for abortion cases only and replacing the familiar strict judicial scrutiny traditionally employed for fundamental rights and suspect classifications. Whole Women’s Health’s clarification works well for most TRAP (targeted regulation of abortion providers) laws, by requiring an examination of each abortion restriction to determine whether it “offers medical benefits sufficient to justify the burdens upon access that each imposes.” Whether this will be appropriate for future creative restrictions abortion opponents might craft remains to be tested. Here is one typical description of the next strategy, which really is a return to the past:

Instead of relying on vague language about women’s health and safety as they seek to kill their children or on the argument that some preborn children feel pain, we need to refocus the pro-life message on the inherent dignity of the human person from conception to natural death.

An Indiana law enacted this year provides insight into restrictions that are not fashioned as protective of women, but more openly seek to create fetal personhood under the law, directly harming and stigmatizing women and the health providers that serve them. The Indiana law (signed by Governor Mike Pence in March 2016) includes a kitchen-sink approach of numerous, varied restrictions. Just three days after Whole Women’s Health a federal district court enjoined two provisions in the law: a ban on abortions chosen for a list of proscribed reasons fashioned to mimic civil rights laws, including on the basis of the sex, race, national origin, or ancestry of the fetus or the diagnosis or potential diagnosis of a disability; and a requirement that in many cases of abortion and miscarriage, clinics dispose of fetal remains by burial or cremation. Interestingly, the challenge and the ruling were not premised on the undue burden standard. The court found (preliminarily) that the ban on reasons was inconsistent with the core of Roe itself and that the fetal remains provision failed rational basis review.

Elections matter, and this one matters greatly due to the death of Justice Scalia and the issues facing a closely divided Supreme Court. A new Justice (or two or more) almost certainly will dramatically affect women’s reproductive rights as they stand in America.

Recommended Citation: Dawn Johnsen, The Court after Scalia: Stark divide means threat to Roe but promise for women’s reproductive justice, SCOTUSblog (Sep. 15, 2016, 2:16 PM),