Sunday, September 18, 2005
What's Next For Roe v. Wade?
The Senate confirmation hearings last week of Chief Justice nominee John G. Roberts Jr. have thrust the abortion issue firmly back into the forefront of America's consciousness. For over 32 years, Democrats, liberals and an untold majority of moderate Republicans have been waiting for the judicial hammer to fall on Roe v. Wade, the 1973 landmark Supreme Court case that legalized abortion in America. Roe has become the most controversial Court decision in our nation's history. In 1970, at the suggestion of a young Austin lawyer named Sarah Weddington, Norma McCorvey, unmarried, pregnant and destitute, filed a class action suit as "Jane Roe" against defendant Henry Wade, Dallas County DA, seeking to overturn the Texas anti-abortion law. The case was won by McCorvey and after three years of appeals found its way to the Supreme Court of the United States.
On January 22, 1973, the High Court upheld the lower court's ruling with a 7-2 majority voting to strike down the Texas law (Justice Byron White and Justice William Rehnquist dissented) on the grounds that laws against abortion violate a constitutional right to privacy. The court was quite busy that day. It also overturned a lesser-known abortion law case out of Georgia, Doe v. Bolton. The court's actions effectively overturned all state laws which restricted and/or banned abortion, permitting the procedure during the first trimester of pregnancy....thus setting the stage for three decades of a contentious, often violent social, moral and religious battleground.
Since 1973 we've witnessed the extremes that the "pro-life" movement has gone to in an effort to circumvent the law and prevent abortion. This includes aggressive protests; bombings of clinics; and the murder of doctors who perform the procedure. The late 1970's and 1980's saw the birth of Jerry Falwell's Moral Majority and militant anti-abortion groups such as Operation Rescue that used violence and intimidation, as well as derisive corporate boycotts, to drive home its message. And incredulously, as recently as last year, rookie Senator Tom Coburn (R-OK), an obstetrician, in an insanely ironic pro-life twist, advocated the death penalty for doctors who perform abortions. The pro-choicers have remained on the winning side of the issue, although it's been an ugly, divisive battle.
In 1992, in another major ruling, Casey v. Planned Parenthood, the Supreme Court in a 5-4 decision upheld Roe v. Wade, and prohibited states from outlawing the procedure in most cases, but said the states could impose restrictions that do not impose an "undue burden" on women.
In September 2005, the case is once again the subject of heated discussion and bitter divide. And with great reason. President Bush has been afforded an opportunity that few presidents ever experience: a chance to shift the leanings of the highest court in the land. With two vacancies so far--the recently deceased Chief Justice William H. Rehnquist and the retiring swing vote, Justice Sandra Day O'Connor--Bush's dream of a staunchly conservative court may soon to be a reality. The president might even get a third shot at it should 85-year-old John Paul Stevens decide that bingo and two or three holes of golf a day beats sitting on the bench.
The $64,000 question all last week, as Senators from both sides of the aisle including Judiciary Chairman Arlen Specter (R-PA) and Joe Biden (D-DE) grilled Roberts, was and continues to be how the soon-to-be Chief views Roe and what if anything might he do to overturn it. A brilliant legal mind and one of the most effortlessly masterful speakers (he blew through the entire week without notes), Roberts, in saying very little, might have said an awful lot. After last week, the term "stare decisis" has become part of America's lexicon. Translated to "to stand by things decided," it's the written code among jurists who respect the precedents set in the prior opinions and rulings of other judges and courts. And this is where Roberts may have tipped his hat. In his 2003 federal appeals court confirmation hearings, Roberts said of Roe "it's a little more than settled. It was reaffirmed in the face of a challenge that it should be overruled in the Casey decision." The majority opinion in Casey stated that to overrule Roe "under fire in the absence of the most compelling reason to re-examine a watershed decision would subvert the court's legitimacy beyond any serious question." And it is in referring to Casey where Roberts shows some key cards: "considerations of the court's legitimacy are terribly important." He added that Casey "reaffirmed the central holding in Roe."
Roberts last week also firmly reinforced the primacy of legal precedent: "I do think that it is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and evenhandedness." And when asked directly by Specter if he believed the Constitution provides for the right to privacy--the foundation of the Roe case--Roberts replied "I do." In the landmark 1965 case Griswold v. Connecticut, the Supreme Court ruled that the Constitution protects the right of marital privacy against state restrictions on a couple's ability to be counseled in the use of contraceptives. Roberts also believes that decided law which becomes part of the nation's social fabric--"settled expectations" as he calls it--should perhaps be left undisturbed. For example, today's 30 year-old-women have lived their entire lives under legalized abortion. They've known nothing else. Overturning Roe therefore would change the expectations of an entire generation of people.
So where do we go from here? How will Roberts approach this controversial issue as abortion-related cases come before the court? It's no litmus test, but believing in the Constitutional right of privacy; the weight of stare decisis/precedent; settled expectations; and belief in the court's legitimacy could be tell-tale signs that Roberts is content with leaving Roe untouched. Signs that last week left many ultra-conservative and religious leaders wondering if Roberts, the Republican appointee, will follow in the footsteps of O'Connor, Souter and others who ultimately disappointed those who put them on the bench. Andy