The Supreme Court Can Ban Abortion?

Jacob Sullum | November 23, 2004

A recent New York Times/CBS News poll asked respondents whether President Bush "is likely to appoint Justices who will vote to...make abortion against the law." Inasmuch as the Court does not have the authority to ban abortion, this is a rather strange question. The real question is whether Bush appointees will vote to overturn Roe v. Wade, which would leave the issue of whether to restrict or ban abortion up to the states. Since 65 percent of respondents think abortion should either be banned or "be available but under stricter limits than it is now," that is presumably an outcome they'd welcome. Yet the Times presents the federalist approach as contrary to the popular will: "Even as two-thirds of respondents said they expected Mr. Bush to appoint judges who would vote to outlaw abortion, a majority continue to say they want the practice to remain either legal as it is now, which was Mr. Kerry's position, or to be legal but under stricter limits."

Comments

|11.23.04 @ 11:20AM|#

I wonder what percentage of people think it should be under stricter limits? These guys are the ultimate swing voters, both sides use them to support their argument. Pro-coicers say, "See they want it to still be legal," while pro-lifers say, "See they want stricter limits."

|11.23.04 @ 11:23AM|#

I imagine we'll hear far less about "activist judges" should Mr Bush appoint a Supreme Court justice or two.

|11.23.04 @ 11:24AM|#

"Since 65 percent of respondents think abortion should either be banned or "be available but under stricter limits than it is now," that is presumably an outcome they'd welcome."

Not necessarily. You're forgetting about the large percentage of people who support Roe vs. Wade, but don't think that it should apply to third-trimester abortions.

|11.23.04 @ 11:30AM|#

My understanding was that Roe v. Wade already allowed the states to restrict or prohibit third trimester abortions:

http://en.wikipedia.org/wiki/Roe_v._Wade

|11.23.04 @ 11:35AM|#

How many Catholics could be convinced that families should be sovereign... especially regarding issues such as this which should be none of governments' business.

|11.23.04 @ 11:35AM|#

What ever happened to those morning-after pills? Those sounded like a good idea.

Contrary to the propaganda, they were not abortifacts, but rather could be used for that purpose. But won't a birth control pill do that too?

Are those available now, or did the courts say no?

|11.23.04 @ 11:38AM|#

Yeah, overturning Roe won't make abortion illegal. It would theoretically make it a state issue except for the little problem lately the Republicans have with one of their alleged principles: federalism. I'm pretty sure the day after Roe is overturned they'll introduce a bill in Congress banning abortion in the United States. I don't know if it would pass the Senate or not but maybe. Then I guess you'd have to take that to the Supreme Court and see how committed they are to federalism. Seems like a crap shoot to me.

Like I've said before I don't think the Republican party really wants to get rid of Roe. Too useful to have around and too many headaches when it's gone. But it depends on whether the christian conservative types actually want something in return for their vote or will remain content with symbolic gestures.

|11.23.04 @ 11:46AM|#

"My understanding was that Roe v. Wade already allowed the states to restrict or prohibit third trimester abortions:"

True, but as I recall, only about ten states currently have effective bans.

|11.23.04 @ 11:46AM|#

Lord Duppy,

Well, there's the RU-486 pill, which is an abortifacient (i.e., a chemical that induces abortion). Then there's the Morning-After pill (most commonly marketed under the name Plan-B), which is merely a double dose of progestin (the same ingredient in ordinary birth-control pills) and works primarily by preventing ovulation or fertilization. Earlier versions of the M-A pill contained a mixture of two different hormones and slightly increased the risk of preventing implantation of a fertilized ovum, but the newer progestin-only pill has only a very negligible risk of preventing implantation. Unfortunately, most people don't understand the difference and, as a result, it's often difficult to get the M-A pill. Which, of course, leads to more unwanted pregnancies and therefore more abortions.

|11.23.04 @ 11:55AM|#

If you put the equal protection clause on the rack, and tortured it sufficiently, you could yield up a decision that said that:

1.) "Unborn humans" are persons under the law, and so
2.) Homicide laws would have to be applied against those who kill fetuses.

This hasn't got anything to do with the history of Roe, but if pro-life judges were as "activist" as NARAL et al feared, that could happen. Conservative jurists are not likely to go that route, unless presented with a Federal Civil Rights law that redefined the beginning of personhood. All of this is highly unlikely.

The original abortion cases did leave a window of regulation, weak in the 2nd trimester and stronger in the third, to the states. That's why there are parental notification laws, and other minor restrictions. Still, other decisions have prevented the states from totally outlawing 3rd trimester abortions, notably the extremely flexible "health of the mother" exception.

Kevin

fyodor|11.23.04 @ 12:36PM|#

I remember reading articles by Cal Thomas advocating that the Supreme Court essentially take the position kevrob alludes to, so while overturning Roe v Wade would not automatically make abortion illegal, there's definitely a movement afoot for the Supremes to bypass RvW altogether and go straight for the jugular. What would the chances of this be, I wouldn't claim to know.

|11.23.04 @ 12:38PM|#

kevrob,
What you say is why this issue urgently needs to be reframed as one of family sovereignty.

|11.23.04 @ 12:38PM|#

If Roe vs. Wade is ever overturned, the next big question would be how the federal courts would rule on laws that bar pregnant women from crossing state lines. As long as a significant minority of the states have easy access to abortion and a majority or close to it have limited access, any efforts to ban abortion are doomed.

I know, I know, not all women can afford to travel for an abortion. Still, I suspect that pro-choice organizations with private funding could arrange networks to subsidize travel for low income women who need abortions. And yes, I know, it wouldn't be possible to cover every single one of them, but they could cover enough that the handful of states with complete or nearly complete bans would feel the need to resort to travel restrictions for pregnant women.

Anyway, I doubt that such restrictions would be upheld. So the pro-lifers are pretty much doomed. The most that they can do is stop a handful of adult women, and significantly more minors, from crossing state lines to get abortions. That's still horrible from the viewpoint of ardent pro-choicers and better than nothing from the viewpoint of ardent pro-lifers.

But from the perspective of somebody who doesn't like either side, all of this fighting only to arrive at a relatively minor reduction will lead me to ask "We fought so long and hard over this?"

Warren|11.23.04 @ 12:44PM|#

Inasmuch as the Court does not have the authority to ban abortion, this is a rather strange question.

Given the SCOTUS's penchant for doing what it no authority to, or even specifically prohibited from, I find that a rather strange assertion.

|11.23.04 @ 12:55PM|#

thoreau,
Try transporting a 16 year old girl across state lines without parental approval and I think you'll see one group that can be prevented from having an abortion.

|11.23.04 @ 12:55PM|#

Oops, I missed this "and significantly more minors" clause.

|11.23.04 @ 1:47PM|#

It's common for activists and the news media (in this case, little difference) to claim that Roe "made abortion legal", when, to be precise, it made it illegal to make abortion illegal. Not the same thing. I can't find the reference, but pre-Roe something like a third of the country lived in states where abortion was already legal. I've long thought it should just be tossed back to the states on federalism/10th Amendment grounds, and abortion rights folks could then concentrate on arranging bus tickets and motel stays for any non-minor who needs to travel for an abortion, as per thoreau's suggestion above.

|11.23.04 @ 1:55PM|#

"How many Catholics could be convinced that families should be sovereign... especially regarding issues such as this which should be none of governments' business."

NONE! Ever'ee sperm is saaaaaacrad!

|11.23.04 @ 2:09PM|#

How many Catholics could be convinced that families should be sovereign... especially regarding issues such as this which should be none of governments' business.

The position of the Catholic Church is that abortion is murder. Family sovereignity is not relevant; if abortion is murder, then it is most definitely not only the government's "business", but its *duty*, to ban it.

|11.23.04 @ 2:14PM|#

Thoreau,

From state's rights POV, crossing state lines to have an abotion would be very similar to the Dred Scott case. The court may be tempted to jump in the air with a decision about whether a fetus is a person with rights or the property of her owner. Better they throw their hands in the air and remain seated on the bench.

|11.23.04 @ 2:30PM|#

Dan,

The Catholic Church's position on reproduction is reduction to absurdity. I think Monty Python's Flying Circus has laid that to rest.

Sing along now:

"Every sperm is sacred.
Every sperm is great.
If a sperm is wasted,
God get quite irate."

|11.23.04 @ 2:35PM|#

The court may be tempted to jump in the air with a decision about whether a fetus is a person with rights or the property of her owner. Better they throw their hands in the air and remain seated on the bench.

They could duck the issue by simply ruling that banning a pregnant woman from crossing state lines violates the principle of "innocent until proven guilty beyond a reasonable doubt." No doubt the pro-choice movement could find a pregnant pro-life woman who's angry over being barred from traveling to California for business. She could say "I'm pro-life, but I don't appreciate being treated like a criminal just because I'm pregnant."

And while it might seem ludicrous that such a test case would arise, never underestimate the government's ability to do something ludicrous.

|11.23.04 @ 2:46PM|#

"innocent until proven guilty beyond a reasonable doubt."

So they might, but they'd be working backwards from a corrolary.

|11.23.04 @ 3:20PM|#

"the Court does not have the authority to ban abortion"

Oh yeah? Based on what? Is there anything the court doesn't have the authority to ban? So long as there aren't 67 senators willing to impeach the court does have authority to say whatever it wants.

|11.23.04 @ 4:21PM|#

Drooling, I'm not Catholic, but it isn't sperm that qualifies to win a soul, is it? Rather it's the instant the sperm enters the egg. Bingo!
How long exactly does that instant take?
Speaking of absurd, we could discuss the theology of that five minute? "phase transition".

Hokey Pokey
You put your left foot in
You put your left foot out
and so on.

|11.23.04 @ 5:16PM|#

"Hokey Pokey
You put your left foot in
You put your left foot out
and so on."

That just might qualify as a sporting event in next Olympics.

|11.23.04 @ 6:11PM|#

Just FYI, "every sperm is sacred" is to the Catholic position on abortion (or reproduction) what "they just want to smoke pot and not pay taxes" is to the libertarian philosophy.

|11.23.04 @ 6:22PM|#

"Family sovereignty" doesn't do it for me. I'm a libertarian. I care about individual sovereignty. The nut-graph of any abortion argument is "who do you say is an individual?" Roe v. Wade is (in)famous for ducking that question in favor of the privacy argument. I'm a "moderate pro-choicer" myself. I find it ridiculous to argue that a picosecond-old conceptus should be considered a legal person, absent special revelation, and an act of moral blindness to treat a child with all of its body except its skull sticking out of Mom as a non-person fit for extermination. But I'm funny that way.

Kevin

|11.23.04 @ 8:11PM|#

Dan, The Catholic Church's position on reproduction is reduction to absurdity.

Just because the Catholic Church takes reproductive issues to an absurd extreme doesn't mean that every position they take on reproductive issues is absurd. There's nothing absurd about the idea that a fetus is a human entitled to human rights; it's a perfectly reasonable, although in my opinion incorrect, position to hold.

Besides, whether or not the CC's abortion-related beliefs are absurd isn't relevant. What's relevant is that, for whatever reason, Catholics consider abortion to be murder, and it is therefore absurd to ask them to consider abortion a "family" matter instead. That's like asking an orthodox Jew to consider a ham and cheese sandwich to be kosher; it just plain isn't.

|11.23.04 @ 8:13PM|#

On the argument that the Court will eventually decide that "eqaul protection" requires that the states outlaw abortion (since they outlaw the kiling of post-fetal life). FWIW, I recall an interview where even Scalia specifically says he would reject that position, and would leave abortion to the states. The one justice I can see possibly taking this position is Thomas.

|11.23.04 @ 9:15PM|#

BTW, in some states a Supreme Court decision overturning *Roe* will directly "ban abortion" without the need for the state to take any further action. That is because these states already have anti-abortion laws on their books, and the findings of courts that such laws were unconstitutional did not remove them from the books; it only meant that *while those decsions stood* the laws were unenforceable.

|11.23.04 @ 10:21PM|#

kevrob,
Individual sovereignty seems a bit too selfish, plus I don't think it reflects reality. Family is nuclear, so to speak. (And I hate being practical.)

Incest and murder are okay as long as they are kept within the family.

|11.24.04 @ 1:29AM|#

Abortion cannot be prohibited even in the third trimester, per Roe and its companion case, DOE v. BOLTON. Language in both cases puports to allow restrictions on abortion after viability, but not when these would impact the mother's "health." BOLTON adopts the WHO's definition of maternal health, which includes her social and psychological well-being; the result is abortion on demand for any reason until live birth.

In the wake of these two cases, in the 70s, several states attempted to prosecute physicians who performed late-term abortions. All such prosecutions were overturned under ROE and BOLTON. To my knowledge, none have been attempted since, because it is clear that courts read ROE and BOLTON to essentially mandate abortion for any reason a woman might have throughout the entire 9 mos of pregnancy.

My own view is a squeamish support for first trimester abortions being legal. ROE and BOLTON I find morally insane.