Beyond Roe v. Wade: Here’s What Gorsuch Means for Abortion

Mar 20, 2017 6:01 am ET

(Bloomberg) -- Last year, on a presidential debate stage opposite Hillary Clinton, Donald Trump vowed, once president, to appoint “pro-life judges” to the Supreme Court. After enough of them, he said, the reversal of Roe v. Wade—the 44-year-old opinion that made abortion legal throughout the United States—would “happen automatically.”

But Roe cannot be that easily overturned—at least, not just yet. Even if Supreme Court nominee Neil Gorsuch’s stance on abortion proves similar to that of his predecessor, Antonin Scalia, he would, if confirmed, only return the court to roughly the balance it held before Scalia’s death. The landmark ruling that advocates on both sides of the abortion debate should focus on isn’t Roe but its 1992 revision of sorts, Planned Parenthood v. Casey. 

Let’s back up.

In Roe v. Wade, decided in 1973, the Supreme Court found that a woman’s decision to keep or terminate a pregnancy was her own to make, in consultation with her medical provider, and was legally protected by a constitutional right to privacy. The 7-2 decision nullified laws that had criminalized abortion in 46 states, and it fueled legal and political battles that still show no sign of abating.

Most Americans’ opinions on whether abortion should be legal are not absolute. A 2016 Pew Research poll found that 58 percent believe there are situations in which abortion should be legal and situations when it shouldn’t. Only 38 percent hold absolute views, believing either that it should always be legal (23 percent) or never be legal (15 percent). This variety of opinions has been remarkably consistent over the decades. In fact, a 1972 Gallup poll taken before Roe’s decision found that 64 percent of Americans believed “decision to have an abortion should be made solely by a woman and her physician.”

Roe reflected that lack of consensus. In its majority opinion, the court noted that abortion was legal at the time of the United Sates’ founding and that most laws prohibiting abortion were relatively recent, dating to the late 19th century. Still, the court found that government did have a vested interest both in the health of the mother and the future of her unborn fetus. It decided that restrictions could not be placed on abortions performed during the first trimester of pregnancy—at that point, abortion is safer for a pregnant woman than giving birth—but could be enacted for second-trimester ones to protect her health. In the third trimester, by which point many fetuses have become viable, abortion could be restricted in the interest of the unborn, except when it was necessary to preserve the health of the woman.

“Law isn't a rule of nature, like gravity. It only works if people believe in it.”

After Roe, states passed abortion restrictions within this trimester-based framework. The more onerous ones led to lawsuits, culminating in the 1992 Supreme Court case Planned Parenthood v. Casey.

At issue was a Pennsylvania law that required that doctors inform patients seeking abortions of any “risks and alternatives,” that parents be notified of a minor’s abortion, that spouses be notified of a wife’s abortion. It also mandated a 24-hour waiting period between a patient’s initial medical consultation and the actual procedure.

The Supreme Court invalidated the law’s spousal-notification requirement, finding that a husband’s “interest in the fetus” doesn’t override a woman’s constitutional rights. But by a 5-4 plurality vote—various judges agreed in parts and dissented in other parts, failing to form a solid majority—it upheld all the others, finding that they did not put an “undue burden” on women. It also issued a long, impassioned explanation of why Roe should not be overturned—something that may give pause to judges set on overturning the decision in the future.

“The ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives,” Justice Sandra Day O’Connor wrote for the plurality. Since Roe, she wrote,  an entire generation of American women had formed relationships and started—or decided not to start—families under the assumption they had this right; to overturn something so momentous would call into question the court’s own legitimacy. “Roe is clearly in no jeopardy,” she wrote.

“That is why Casey is the key here,” says Julie Cantor, a Los Angeles litigation attorney and a lecturer of medical ethics and the law at UCLA School of Law. “It upholds Roe but establishes this ‘undue burden’ rule that gives you the framework for everything that came after it.”

“However—and there is a big ‘however,’” adds Carol Sanger, a professor at Columbia Law School, “the court also said, ‘We think that Roe didn’t get it right in every regard.’ And they threw out the trimester framework.’”

Casey left states free to regulate abortion throughout all stages of a pregnancy and to outlaw it completely after a fetus becomes viable, generally understood to be around 24 weeks—provided the woman’s health wasn’t in danger, and provided the regulation didn’t pose an “undue burden.”

The trouble was that Casey didn’t define “undue burden” other than as a regulation with “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion.” It didn’t specify what constituted a substantial obstacle.

“The court really didn’t provide much guidance,” says Janet Crepps, senior counsel with the Center For Reproductive Rights. “That left district courts and courts of appeals to more or less fill in the blanks. Depending on evidentiary showings or the judicial philosophy of judges, we were getting all sorts of different results.”

Since then, states have passed dozens of such requirements, more than 60 last year alone. Many of them, including multiple-day waiting periods and mandatory ultrasounds, have held up in court. Others like Arizona’s 2012 ban on abortions performed more than 20 weeks after a women’s last menstrual period—or likely 18 weeks from conception, well before viability—have been struck down. In March, Mike Pence, then still the governor of Indiana, signed a law to require that aborted fetal remains be cremated or buried; a federal judge blocked it. Similar laws in Texas and Louisiana met the same fate.

In June, with just eight justices, the Supreme Court finally clarified its ‘undue burden’ rule when it decided Whole Woman’s Health vs. Hellerstedt.  In a 5-3 vote, the court found that a Texas law requiring doctors at abortion clinics to have hospital-admitting privileges was not medically necessary—many riskier medical procedures, like colonoscopies, did not come with these requirements—and therefore posed undue burdens. Another part of the law, which required clinics to have facilities comparable to ambulatory surgical centers, was also struck down as serving no medical purpose. Already, the law had forced more than half of Texas’ abortion clinics to close—closures that the court noted had severely strained those still open, overworking doctors and leaving patients less likely to get quality, individualized care. “These effects would be harmful to, not supportive of, women’s health,” Justice Steven Breyer wrote in his majority opinion.

The decision was largely seen by legal scholars as a win for reproductive rights activists—one that placed limits on what could be considered an undue burden under Casey.

But when future Supreme Court cases about abortion restrictions arise, as they inevitably will, a more conservative court may define ”undue burdens” differently.

Scalia had died before the Whole Woman’s Health decision, and Gorsuch’s appointment is widely considered likely to restore the court to the conservative tilt it had before his death. Should Trump get the chance to appoint more judges, that could tilt it further.

“There’s a lot of reason to be concerned if you’re a big fan of women’s reproductive rights,” says Michael Klarman, a professor at Harvard Law School. “As soon as you overturned the trimester framework in Roe, you’re no longer in the realm of being bound by precedent.”

The court can thus see-saw back and forth on abortion decisions as conservative justices replace liberals, and liberals conservatives.

“Some of these [laws] we're seeing do want to make a direct challenge to Roe.”

Overturning Roe entirely, on the other hand, would require a judicial about-face that so far, in 44 years, the court has avoided. When Casey presented a chance to overturn it, the court—which at that time consisted of eight Republican-nominated justices and only one Democratic-nominated one —instead re-affirmed it, much to anti-abortion activists’ surprise.

“They said essentially, ‘Look, the consensus of the country hasn’t changed; nothing is different about abortion in 1992 than it was in 1973, other than the makeup of the court,” says Cantor at UCLA. “The way they saw it, overturning Roe put them in massive danger of delegitimizing the court in the public’s eyes. If you start taking apart decisions that are highly controversial just because you don’t personally like them, you could end up destabilizing 200-plus years of an American institution that keeps people behaving properly. Law isn’t a rule of nature, like gravity. It only works if people believe in it.” 

A Roe reversal is possible. Former Chief Justice William Rehnquist made no secret of his desire to do away it, and Scalia, in his Casey dissent, argued that it should be overturned, writing that since the Constitution doesn’t mention abortion specifically, it should be up to states to decide. (Critics of that argument note that the Constitution doesn’t mention marriage, either, but the court has felt free to strike down states’ bans on interracial and, more recently, same-sex marriage.) Like Scalia, Gorsuch is what’s known as a legal textualist, interpreting the law based on the words as written, not their perceived intent; he called called the late justice ”a lion of the law” in a tribute published last year in the Case Western Reserve Law Review. If Trump appointed enough justices like him—in theory, he might need just one more appointment— and the right case came up, the court could conceivably follow Scalia’s original line of thinking and overturn Roe.

At least a few states seem intent on bringing forth such a case. “Some of these [laws] we’re seeing do want to make a direct challenge to Roe,” says Janet Crepps, senior counsel with the Center for Reproductive Rights. She points to North Dakota’s 2013 law banning abortions after six weeks—at which point a fetal heartbeat can be detected, but many women don’t even yet know they’re pregnant. “North Dakota’s whole defense was that they should be given a trial to put up all these new facts on why Roe should be overturned,” she explains. A federal appeals court struck the law down, and last year the Supreme Court declined to review it.

Crepps says it’s too early to know what will happen in the next few years. In theory, Whole Woman’s Health has made it harder for states to pass abortion restrictions, but the political climate—a president who vows to try to overturn Roe, a Congress poised to defund Planned Parenthood—may embolden state lawmakers seeking to limit it. “We’re waiting to see what the legislatures do in the various states,” says Crepps. She points to the rash of laws banning abortion after 20 weeks—16 states already have such laws on the books—even though that’s well before viability, as one of the more recent tactics get the Supreme Court to re-think Roe.

But even if the court takes up such a case, Klarman at Harvard says an overturn of Roe would only inflame the abortion debate further and generate a backlash against the court—something its justices likely realize. “To me it’ll be a calculation of, ‘How much of a price are we going to pay with regards to the legitimacy of the institution?’” The Supreme Court, he said, operates under the notion that its justices are somehow bound not by political views but by the law, and the president’s promise to choose justices with the express purpose of overturning Roe would make it tough for the court to do so without abandoning its apolitical veneer. “If they’re constantly overruling past decisions, people are going to see it’s a canard. It’s all politics.”

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