Does anyone think Donald Trump would be president if he had not made a promise during his presidential campaign to appoint Supreme Court justices who would vote to overturn Roe v. Wade, the 1973 decision that established a woman’s right to choose?
Taking a small, unscientific poll in my own family, I know there are many voters who voted for him solely because of his campaign promise on this issue. Of course, there were also many “anyone but Hillary” voters who did not base their vote on the abortion issue, but Trump’s promise to overturn Roe v. Wade was a cornerstone of his campaign, and he rode it to victory.
In the wake of Justice Kennedy’s retirement announcement, the battle lines have been drawn and as we approach the mid-term elections. After the impending appointment of the person to be approved by the U.S. Senate to replace Kennedy, there will be an intense debate in the coming weeks and months. However, some prominent nationally syndicated columnists such as Kathleen Parker have already reminded everyone that perhaps not as much is at stake as many may think.
Even if President Trump’s appointee is the most “pro-life” justice in the history of the court, abortion will not become illegal if Roe v. Wade is overturned. The cases that have become before the Supreme Court, including the Roe case, arose from state legislation either making abortion illegal or placing significant restrictions on the right to choose. Roe v. Wade stands for the proposition that the right to choose an abortion is protected by the Fourteenth Amendment to the U.S. Constitution. The court extended the previously established right of privacy to include the right to choose abortion. Roe v. Wade was not the first case to recognize a right of privacy.
Many states, including Missouri, have imposed significant restrictions on the right to choose. For abortion to become illegal in any state, legislation will have to be passed to make it illegal, much like Texas did in the Roe case. Then, the appellate process will occur, which will start in the federal trial court, then be appealed to the federal circuit court of appeal, and then to the Supreme Court after a final decision is made in the lower appellate court.
This will take some time. Norma McCorvey (Jane Roe) sought an abortion in 1969, but the Supreme Court case was not decided until 1973. Missouri may even be the origin of the test case because the pro-life legislators and governor will likely move quickly to illegalize abortion in Missouri.
If as is expected by the Trump base of voters that a strong “pro-life” justice is appointed and approved by the Senate, an intense debate will ensue before the Supreme Court. This will require an examination of the right to privacy. If a majority of the justices decide that there is indeed no right to privacy protected by the Fourteenth Amendment, this will open the door to other challenges to legislation currently protected by the right of privacy. Griswold v. Connecticut, decided in 1965, invalidated a law that banned the use of contraceptives on the basis of a marital right of privacy. More recently, in 2003, the court invalidated a Texas anti-sodomy law that made it illegal for consenting male adults to engage in sex on the basis of the right of privacy.
The Court will also have to consider a 1992 decision, Planned Parenthood v. Casey, which upheld more restrictive regulations on abortion in Pennsylvania. A majority of justices recognized the right of privacy protected by the Fourteenth Amendment. A case, Moore v. City of East Cleveland, decided in 1977 also followed the precedent of the Griswold case. In Moore, an ordinance that made it illegal for a grandchild to live with his grandmother was invalidated. The court stated that this “Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment." Roe v. Wade and the Griswold case were cited in support of this holding.
The one thing to keep in mind: Abortion will not become illegal in the United States unless Congress passes a federal law making it illegal. Many state legislatures will refuse to illegalize abortion. Restrictions will continue to be passed in states that do not illegalize it.
Currently, 41 states require an abortion to be performed by a licensed physician; 43 states prohibit abortions after a specified point in pregnancy except when necessary to protect the woman’s life or health; 20 states prohibit “partial-birth” abortions; restrictions on public funding exist in many states; 11 states restrict coverage of abortion in private insurance plans; 18 states require pre-abortion counseling; 27 states have a waiting period for a woman seeking an abortion; 37 states require some type of parental involvement in a minor’s decision to have an abortion and 26 states require one or both parents to consent to the procedure, while 11 require that one or both parents be notified.
Justice Kennedy’s retirement has intensified the debate. This is a complex issue that will challenge the Supreme Court for years to come regardless of who the president appoints.
Bob Buckley is an attorney in Independence, www.wagblaw.com . Email him at firstname.lastname@example.org