The abortion battle is set to get worse, regardless of who replaces RBG

Once again the nation is being roiled by a political dogfight to fill a Supreme Court vacancy. It is a troubling testament to how partisan politics has infected decision-making at the high court. And the most contentious issue has been abortion rights, with pro-life and pro-choice groups jumping into the current melee hoping to see Roe v. Wade either overruled or reaffirmed.

But with five solid conservative justices now controlling the court, the die has been cast on abortion rights for the foreseeable future — a situation unlikely to change whether or not the Senate confirms Judge Amy Coney Barrett to fill the late Justice Ruth Bader Ginsburg’s seat.  And that future is unlikely to see an outright overturning of Roe because that decision largely has become a shadow of itself, leaving in its wake an abortion rights paradigm that will only produce more intense acrimony on the subject.    

But wait, didn’t the court recently strike down Louisiana abortion regulations in June Medical v. Russo as violating Roe rights? Yes, but with a huge “but.” There, Chief Justice Roberts broke from his conservative colleagues to give the liberal justices an abortion rights victory. Roberts may have done this to shield the court from more attacks that it has become too political. After a bare majority, consisting of the liberal justices plus swing vote Anthony Kennedy, struck down Texas abortion restrictions identical to those in Louisiana four years ago, Roberts likely was not eager to see the court do an about-face that could be explained only by Kennedy being replaced by his more conservative mentee, Justice Brett Kavanaugh (read: Constitutional law is nothing but the personal predilections of the justices who hold a majority of court seats at any time).

But Roberts’s vote came with a steep price for abortion rights supporters. He conditioned it on a change in abortion law that will allow states, should they be inclined, to “red tape” the abortion process, as long as such regulations cannot be said to block a woman from obtaining one. In other words, states are free to enact regulations designed to thwart abortions if they have legitimate-sounding reasons.

What accounts for this peculiar situation? Abortion regulations can be grouped into two main types (although there are more): “persuasion regulations” designed to persuade a woman to give birth, such as requiring her to be informed about the developmental status of her fetus and to reflect on that for a day or two before getting the procedure; and “safety regulations” purportedly designed to make the procedure safer for women. The big difference is that the former type operate fairly transparently as to their purpose, while the latter type can be imposed as a pretext for hindering a woman’s access to abortion services.

When Republican appointees took control of the court and decided the 1992 case of Planned Parenthood v. Casey, they weakened Roe substantially by stressing that, henceforth, judges should defer to the legitimacy of persuasion regulations imposed by legislatures. Almost off-handedly, they added that judges should not second-guess a legislature’s decision to impose additional safety regulations.  

But in 2016, Casey put the court in a bind when it was asked to review new safety regulations that Texas had imposed, which many claimed were unnecessary and designed to make it more difficult for woman to obtain abortions. The main ones were requirements that abortion clinic doctors have admitting privileges at local hospitals, which resulted in many clinics closing in the state. Since Casey would have required judicial deference to such regulations, a bare majority of justices essentially recast that decision to require judges to balance the regulations’ safety benefits against the costs they imposed on abortion providers — thus allowing them to invalidate the Texas regulations.    

In 2018, however, Kennedy, who voted with that majority, was replaced by Kavanaugh. This gave the conservatives five votes to reject this move from “Casey-deference” to “Casey-balancing,” an opportunity they embraced in June Medical even though Roberts cast the critical fifth vote to strike down the Louisiana admitting-privileges requirements on a “this is just the Texas case all over again” rationale.  

So now the court essentially has directed a return to an approach that will allow states to enact both persuasion and safety regulations without a meaningful judicial check. It would have been better if the court had distinguished between the different risks associated with persuasion and safety regulations, and said that while judges could not question the legitimacy of the former, they could weigh the burdens and benefits of the latter where it seems they are being imposed mainly to obstruct abortion access.

As it is now, two things will happen. Large segments of the public will be further inflamed when the court essentially rubber-stamps the red-taping of the abortion process in the name of illusory health benefits for women, and the court itself is going to breed cynicism and disrespect by being a key player in such a charade.

Of course, there is a solution to this situation beyond making distinctions between different types of abortion regulations. The problem really began with Casey, where the court attempted to retain a meaningful abortion right while allowing states to heavily regulate it. Such compromises are rarely successful.

Perhaps it is time for the court to outright overrule Roe and return the subject of abortion rights to individual states — where the matter stood before that decision constitutionalized an inflexible national approach that even some leading liberals have decried — or at least to rethink the subject entirely. A model for this might be the approach of other countries, such as Germany, that afford constitutional rights to both women and fetuses, resulting in laws that are more permissive for abortions conducted early in a woman’s pregnancy and more restrictive as a fetus becomes more fully developed. 

But for such an approach to be successful, it must be law that drives constitutional decision-making, and not the shifting membership of the nation’s highest court.  

Barry P. McDonald teaches constitutional Law, First Amendment law, comparative constitutional law, intellectual property law and contracts law at Pepperdine University’s Caruso School of Law. He is a recognized expert on constitutional law and the U.S. Supreme Court.