The End of Abortion

Jun 30, 2018 by


By Reva Siegel

Ms. Siegel is a professor at Yale Law School and has written extensively about abortion and the law.

A demonstration in Pittsburgh in 1974.CreditBarbara Freeman/Getty Images

As a candidate, Donald Trump promised to appoint justices who would overrule Roe v. Wade, and the actions of his administration confirm his hostility. With Justice Anthony M. Kennedy’s retirement, we are now at the moment of reckoning.

The court of Chief Justice John G. Roberts Jr. could reject Roe quickly and openly, allowing states to ban abortion at any point during pregnancy and to punish doctors and even their patients — as Mr. Trump discussed on the campaign trail. Some states like Iowa have already enacted laws banning early abortion to put test cases in the judicial pipeline.

Of course, an overruling of this kind would send political shock waves through the country. It would assuredly mobilize voters. The justices may want to avoid this, so a reconstituted Roberts court may instead choose stealth and overrule Roe without openly acknowledging it was doing so. Already the court has allowed so many restrictions that Mississippi has only one remaining abortion clinic. With another Trump appointee, the court would most likely gut its current abortion standards and allow legislatures to enact restrictions that would make access to abortion practically impossible in hostile states. Stealth overruling would effectively produce the same result as an explicit overruling of Roe — with less political backlash.

Today, 27 major cities are 100 miles or more from the nearest abortion provider, and we can expect these “abortion deserts” in the South and the Midwest to spread rapidly. It is not only abortion clinics that are at risk. It is not clear what constitutional protections, if any, a newly constituted Roberts court will provide a woman who needs to end a pregnancy to save her life or health.

Nor is it clear that the court will limit the religious-conscience objections of health care providers whose refusals inflict harm on their patients and customers. Contraception and more is imperiled. A Walgreens pharmacist citing his ethical objections recently refused to give a woman medications she was prescribed for a miscarriage, provoking a storm of social-media protests about the impact of women’s health and dignity. In either world the burden of increased regulation would fall on poor women, on young women and on women in remote and rural settings who lack the means to travel to states where health care is more readily available.

Given the current composition of the Senate, it is hard to imagine a confirmation process that might prevent the appointment of a justice who would vote for Roe’s overruling — in the way that Senate objections in 1987 blocked the confirmation of Judge Robert Bork, which ultimately led to Justice Kennedy’s promotion to the bench.

That said, it is not crystal clear that there are 50 members of the Senate who are prepared to vote for a nominee who would cast a deciding vote in a case reversing Roe. Would each of these senators vote to deny women liberty and equality rights guaranteed for decades, or for a nominee who might throw into question cases protecting so many other civil rights and liberties — even if those same senators recently voted to confirm Justice Neil M. Gorsuch?

A rigorous confirmation process is therefore crucial for senators, who must advise and consent in the appointment — as well as for the constituents who must decide whether to return their senators to office this fall. Thirty-five seats are up in 2018, with 24 held by Democrats and two more by senators who caucus with the Democrats. We need a confirmation dialogue that will show us where a Supreme Court, with President Trump’s nominee casting the deciding vote, will take the nation. What exactly would this America — Trump’s America — look like?

Regrettably, in recent years the confirmation process has provided scarcely any insight into a nominee’s views in disputed areas of constitutional law. Neil Gorsuch’s responsiveness to questions in the confirmation hearing was the lowest of any nominee since 1968, a recent study in The Chicago-Kent Law Review found. The then-Judge Gorsuch invoked Justice Ruth Bader Ginsburg as precedent for his approach to answering questions, but her responsiveness was one of the highest historically. In her confirmation, Justice Ginsburg discussed her support for abortion rights — a woman’s “right to decide whether or not to bear a child” — as grounded in equal protection, individual autonomy and dignity, as the recent documentary “RBG” reminds us. Neither Constitution nor history requires a nominee to stonewall. But today, court nominees are coached to avoid answering questions.

Our Constitution locates the confirmation process in the representative branches for a reason — so that the justices are chosen by the people whose Constitution they are expounding. A confirmation process serves the twin values of democracy and the rule of law — it must inform senators, yet leave the nominee free to judge.

A nominee may properly refuse to answer questions about a case that may come before the court or to answer in a way that would bind her or his vote. But senators can explore the nominee’s constitutional philosophy in other ways. For example, a senator can ask how the nominee would have voted in cases the court has already decided. Nominees who answer such questions have not compromised their impartiality any more than sitting justices who have published prior opinions expressing their views.

Senators have an obligation to probe a nominee for views of law — and to expect an intelligible answer — before casting a vote on confirmation. With the court at this historic juncture, where the next justice will hold the deciding vote, voters need to learn about the practical stakes of this nomination — across so many areas of law — before casting their votes for the Senate in November.

The reality is that protection for choice now lies in politics and not the judiciary.

With the Supreme Court’s blessing, states are about to enact even greater waves of abortion restrictions in the name of protecting unborn life. We can and will argue about harm to women, but it is equally urgent to confront these restrictions by asking when and how government protects life. Expanding the frame beyond abortion, we can ask: Does government protect new life in ways that respect and support women’s choices — for instance, through sexual education, contraception, health care, income assistance and accommodating pregnancy and parenting in the workplace? Or does government protect life selectively, in ways that restrict women’s choices? I call this way of thinking prochoicelife.

A Supreme Court that would reverse or gut Roe and allow the states to coerce women to carry a pregnancy to term will not ask these questions. But if the court will not ask these questions, we must.

Asking how government can protect life — without coercing women — can provoke different conversations in different regions. Coalitions and communities may focus on job accommodations for pregnant women, or contraception, or health care, or gun control, or sanity at our borders.

We can look for common ground as we continue to debate these crucial and often polarizing questions. In a nation that claims to care about protecting life, pregnancy discrimination is rampant: A recent study found that more than four times as many women claimed discharge from employment for becoming pregnant than complained of harassment. These working women need to support their families. And Americans increasingly agree. Red, purple and blue states are now passing laws that provide for the reasonable accommodation of pregnant workers.

In a world where only some state courts will protect the right to abortion, we can call upon government to enforce the Constitution outside the court and to protect life in ways that also protect women’s equality, life, health and dignity.

Reva Siegel is a professor at Yale Law School.

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