An article in the April 16th, 2022 issue of The Economist, “What Happens If America’s Supreme Court Overturns Women’s Right to Abortion,” dives into the radical changes already underway—and those to come—for abortion and the law.[i] Though it’s been prophesied too many times[ii] that the U.S. now sits at the precipice of the end for the legal right to abortion, a subtler truth has gone unacknowledged: we now sit at the center of the end.
Modern abortion law is premised on the notion of a fundamental right to privacy found, but not explicitly recorded, in the text of the U.S. Constitution.[iii] In Roe v. Wade, the U.S. Supreme Court applied the right to privacy to determine the right to abortion. In Roe the court adopted a trimester-based framework, wherein abortion restrictions were subject to decreasingly strict levels of scrutiny in each trimester.[iv] Contrary to popular conception, the decision in Roe was not universally celebrated by reproductive justice advocates. John Hart Ely expressed the internal discord between his personal support for reproductive justice and his legal skepticism of the decision in his 1973 article, “The Wages of Crying Wolf: A Comment on Roe v. Wade.” Later, Planned Parenthood v. Casey left the legal right to abortion intact by shifting the trimester framework to a “viability” framework—granting states the ability to restrict abortions after a fetus is likely to survive a birth (around 24 weeks).[v] The long history of abortion law in the U.S., and the foundations on which it has been built, illuminate the radical changes underway in the modern day.
If the legal right to abortion, as established in Roe and consolidated in Casey, were to cease to exist, at least 24 states are expected to ban abortion outright.[vi] But what are national attitudes toward the outright ban of abortion? Responses to the question,
“The 1973 Roe v. Wade decision established a woman’s constitutional right to an abortion, at least in the first three months of pregnancy. Would you like to see the Supreme Court completely overturn its Roe v. Wade decision or not?”
from 1989 to 2020 indicate that a complete overturn of the legal right to abortion is a view much in the minority. Since 2016, the average support for a complete overturn of Roe v. Wade was 28.5% of respondents.[vii] What’s more, focus group research indicates that many who feel abortion should be left to individual choice still respond as opposed to abortion in polling.[viii] Though it seems that national opinion leans more toward the abortion-rights camp, it’s undeniable that the subject of abortion is a highly polemic one. Gallup research indicates that “pro-choice” and “pro-life” identities have become increasingly similar in size, with both identities hovering just below 50% of respondents.[ix]
State governments seeking to subvert Roe and the legal right to abortion have employed numerous innovative legal strategies. In Texas, the colloquially known “Heartbeat Act,” is not enforced by any officer of the state of Texas, but instead by private individuals through civil litigation.[x] This enforcement mechanism enabled the State of Texas to enact a ban on abortions after about six weeks of pregnancy—far below the 23-week minimum asserted by Casey—by eliminating any possible defendants for abortion providers to sue. Though the Texas law foregoes the guidelines laid down by Roe and Casey, abortion providers in Texas are (as it stands) unable to seek judicial relief because they lack the necessary standing. The implications of this type of enforcement mechanism for democracy are immense. That abortion providers currently have no real option for judicial relief indicates a closed regime in which the policy preferences of citizens, treat as equals, cannot be heard. By closing off abortion litigation in this way, the State of Texas has threatened a fundamental principle of liberal democracy as defined by Robert Dahl.[xi] Moreover, that the Texas law is wit-large in violation of the guidelines put forward by the U.S. Supreme Court poses a threat to the national federal system. Such rebukes of the national federal system fall in line with broader trends of public disengagement from the federal government—which over time have “hardened into almost tribal conflict.”[xii] A threat to polyarchy, a threat to federalism, the Texas Heartbeat Bill stands to drive forces of democratic deconsolidation.
If—as Ely argues—the legal right to abortion is established on faulty ground, then what distinguishes decisions like Roe and Casey from decisions overturning them? Casey attempts to answer this question with the principle of judicial restraint. Casey states that once the court has come down on an issue of such high public attention, to shift the central holdings at play would require a “most convincing justification.”[xiii] Casey states plainly like a message to the future: “To overrule under fire in the absence of the most compelling reason, to reexamine a watershed decision, would subvert the Court’s legitimacy beyond any serious question.”[xiv] This principle of “watershed decisions” could be both a boon and a threat to democracy. If used to ensure judicial restraint and institutional legitimacy, democracy benefits. If used to protect faulty decisions which endanger the principles of liberal democracy, democracy fails. Nonetheless, the court is right in asserting that immense precaution should be made to protect the legitimacy of the court. In How Democracies Die, Steven Levitsky and Daniel Ziblatt argue that norms of political culture act as “guardrails” for democratic institutions.[xv] In this case, the norm of judicial restraint is one such guardrail.
The threat to American democracy within legal shifts around abortion is many-headed. Complete bans of abortion, or an appeal of existing precedent, would endanger a key characteristic of any democracy: its responsiveness to its citizens. Moreover, the legal techniques already being pursued by state governments to restrict abortion threaten American rule of law, and—by extension—American democracy. For example, the Texas Heartbeat closes the regime to citizen activism, and threatens the U.S. federal democratic structure. To protect democracy, the U.S. Supreme Court must protect its own legitimacy, and thereby protect the legal right to abortion. It is true: we now sit at the center of the end—both for abortion rights and American democracy—we face two exits: one of liberal democracy, and one of authoritarian quasidemocracy.
* The title of this blog post, “At Once Pro-choice and Pro-life” references a quote by Karlyn Bowman, a resident fellow at the American Enterprise Institute: “The public is at once pro-choice and pro-life.” in Jan Crawford Greenburg, Washington Bureau, “Roe v. Wade at 25: America’s Great Divide,” Chicago Tribune, Jan 19, 1998.
[i] “What Happens If America’s Supreme Court Overturns Women’s Right to Abortion,” The Economist, April 16, 2022.
[ii] E.g., in popular news media during the confirmation hearings of Associate Justice Brett M. Kavanaugh and Associate Justice Amy V. Coney Barrett.
[iii] Roe v. Wade, 410 U.S. 113 (1973).
[iv] Roe v. Wade, 410 U.S. 113 (1973).
[v] Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).
[vi] “What Happens If America’s Supreme Court Overturns Women’s Right to Abortion,” The Economist, April 16, 2022:” Twelve states already have “trigger laws” that would click into effect the moment Roe was undone; a further 12 are expected to dust off pre-Roe bans or make new ones.
[vii] American Enterprise Institute, Attitudes About Abortion: A Comprehensive Review of Polls from the 1970s to Today, November 2021, accessed April 20, 2022, https://www.aei.org/wp-content/uploads/2021/10/Attitudes-About-Abortion.pdf?x91208.
[viii] Tresa Undem, “Why So Many Polls Get American Attitudes About Abortion Wrong,” Vox, accessed April 20, 2022, https://www.vox.com/a/abortion-decision-statistics-opinions/abortion-polling-mistakes.
[ix] Gallup, “In Depth: Topics A to Z: Abortion,” accessed April 20, 2022, https://news.gallup.com/poll/1576/abortion.aspx.
[x] Shannon Najmabadi, “Gov. Greg Abbott signs into law one of nation’s strictest abortion measures, banning procedure as early as six weeks into a pregnancy,” The Texas Tribune, Accessed April 20, 2022, https://www.texastribune.org/2021/05/18/texas-heartbeat-bill-abortions-law/
[xi] Robert Dahl, On Democracy (New Haven: Yale University Press, 1998), 147.
[xii] Robert C. Lieberman, Suzanne Mettler, Thomas B. Pepinsky, Kenneth M. Roberts, Richard Valelly, “Trumpism and American Democracy: History, Comparison, and the Predicament of Liberal Democracy in the United States,” SSRN (Aug 29, 2017).
[xiii] Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), 836.
[xiv] Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), 867.
[xv] Steven Levitsky and Daniel Ziblatt, How Democracies Die (New York City: Crown, 2018).