Diary

Relax Feministas: Roe Isn't Going Anywhere Anytime Soon

With the announcement that Judge Brett Kavanaugh of the DC Circuit was nominated to the Supreme Court by President Trump, liberal heads are exploding.  The most amusing complaints come from feminist groups and legalized baby killers like Planned Parenthood and their unrepentant facilitators like NARAL, the Women’s March freaks, and others.

From headline grabbing feminists to politicians to the most inconsequential user of Twitter, it looks like Brett Kavanaugh is Genghis Khan, Adolph Hitler and Joseph Stalin all rolled into one given the number of deaths that will lie at his feet.  Said feminist.org:

 In the recent case of Garza v. Hargan, Kavanaugh wanted to make it impossible for a 17-year-old pregnant migrant to access an abortion. Even though she had already jumped through all the state-required hoops, Kavanaugh would have forced her to wait weeks longer for a resolution, which would have pushed her into the second trimester…

Others have portrayed his nomination as the first step towards a dystopian society best seen on Handmaid’s Tale.  To listen to these harpies, there will be no birth control available (which would really piss off the pharmaceutical industry) and the sale of wire hangers would increase.  Throughout the Leftist political blogosphere, self-righteous Democratic Party leaders are standing up and declaring an impending end to “reproductive rights” in America, code word for abortion on demand.

John Roberts (who was suggested to the Supreme Court by Kavanaugh, by the way) has been Chief Justice starting with the 2005 term.  The next term will make thirteen terms for the Roberts Court.  In that time, the Supreme Court, under the leadership of John Roberts has taken on exactly TWO abortion cases and one case was actually granted cert when William Rehnquist was Chief Justice.

That case was Ayotte vs. Planned Parenthood of Northern New England, a challenge to New Hampshire’s parental notification requirements.  And in that case directly taking on the issue of abortion, the Court sidestepped the more controversial aspects.  The lower court issued and injunction and struck down the entire law.  The Supreme Court overruled basically telling the lower court they over overstepped their bounds and need not issue an injunction against the entire law.

Note that the Court did not address Roe and only addressed Casey vs. Planned Parenthood in passing noting that parental notification requirements were not necessarily an “undue burden” under Casey’s reasoning.  In effect, the case was sent back to the lower court.  Two things are noteworthy here.  First, it was the last decision written by Justice Sandra Day O’Connor.  Second, it was a unanimous decision meaning that liberal stalwarts like Stephen Breyer and Ruth Bader Ginsburg also agreed with the decision, along with Scalia and Thomas.

It took another ten years before the Roberts Court heard an abortion case.  That was the 2016 decision in Whole Woman’s Health vs. Hellerstedt.  That decision largely struck down Texas’ HB-2 which treated abortion facilities as outpatient surgery units with certain requirements, among them hospital admitting privileges.  The case was decided 5-3 (Scalia had passed away by the time the decision was announced).  In the wake of that decision, Alabama which had a similar law, dropped their action.  Eight states besides Alabama had similar provisions, five of which were enjoined against enforcement.  The Court later refused to hear appeals from Wisconsin and Mississippi allowing injunctions to stay in place.

In controversial cases involving push-button controversial social issues like abortion or gun control, the Roberts Court has been very, very selective in choosing these cases.  For example, since Heller and McDonald, and despite liberal states testing the limits of Second Amendment jurisprudence, the Court has on many occasions turned down appeals, many of them involving what appear to be direct violations of Second Amendment rights.

It takes four Justices to grant cert in any case and to place it on their docket for briefing and oral argument.  This is done at conferences where pending cases are considered for acceptance.  We do not know what goes on in these conferences, what is said, what arguments are raised, how much arm-twisting occurs, and who votes which way.  All we know is that the Court has had numerous petitions before it dealing with abortion directly and since 2005, the Roberts Court has taken and made a decision in only two cases.

In fact, their avoidance of abortion was the subject of a Slate article in 2015 called “When Will the Supreme Court Stop Avoiding Abortion?”  The article was published before the Whole Woman’s Health case, so I guess they got their answer.  This was a liberal outlet making the complaint.

As for Kavanaugh, being the new kid on the block, my best educated guess is that he will not be too willing to rock the boat initially.  From the looks and sound of it, Kavanaugh has more in common with John Roberts than he does with his more conservative counterparts in Alito and Thomas who appear unafraid to directly tackle tough issues.  Part of Roberts’ reluctance may be his desire to protect the integrity of the Supreme Court by avoiding controversial decisions.  If he had his way, every decision would be unanimous, or 7-2 at worst.  It may explain why even when a controversial subject and decision comes before the Court, Roberts tends towards the most narrow reasoning possible.  Sometimes he even hides behind the issue of standing and justiciability (or whether a court can even exercise its judicial authority).

A day may come and a case may present itself regarding abortion and the Supreme Court will have to weigh in.  Whether states use the Kavanaugh appointment to force the issue will likewise be watched.  The bottom line is that the Court whether under Burger, Rehnquist, or Roberts has had the opportunity to overrule Roe and all have failed to do so.

In conclusion, certainly Roe was a flawed decision largely devoid of serious Constitutional jurisprudence.  But, the pro-life movement has survived and largely been vindicated given advances in medical research, technology and prenatal care and medical interventions.  For all practical purposes, Roe is a relic with the battle now over the parameters of an “undue burden” and proving once and for all that what some call a blob of cells is a “person” within the meaning and protections of the Fourteenth Amendment.