A vacancy on the U.S. Supreme Court—and the nomination of Judge Brett Kavanaugh to fill it—has produced endless talk about the possible overturning of Roe v. Wade, the 1973 Court decision that eliminated laws protecting unborn children from being killed through abortion.
"The crisis is here," warns the Planned Parenthood Action Fund. "[O]ur constitutional right to access abortion is at risk." An NPR reporter (rather subtly) calls this nomination "the end of the world as we know it."
The Court could indeed reverse Roe outright at some point in the future—or scale it back gradually over time as the justices consider and uphold new abortion limits. No one knows for sure what will happen.
But a lot of misunderstandings surround the possible overruling of Roe. Here are four big ones that deserve correction.
Myth #1: Most Americans support Roe
"Abortion rights is the majority position," proclaims Katha Pollitt in the New York Times. "Sixty-seven percent of Americans do not want Roe to be overturned."
Journalists and advocates often cite polls that find such a result, but they are highly misleading. Many (probably most) Americans don't realize the scope of Roe. Many wrongly think that overturning the decision would simply make abortion illegal (see Myth #2). And many poll questions about Roe badly mischaracterize it.
What did Roe do? It decided that abortion must be allowed for any reason in the first trimester of pregnancy. It also decided that abortion must be allowed for any reason in the second trimester. And it decided that abortion must be allowed for (at the very least) "health" reasons in the third trimester—and "health" reasons were understood (in Roe's companion case of Doe v. Bolton) to encompass "familial," "psychological," and "emotional" reasons (which mean, in practice, "unhappiness about pregnancy").
Subsequent Court decisions, most notably Planned Parenthood v. Casey, eliminated Roe's trimester scheme (among other adjustments) but continued to require abortion-for-any-reason prior to fetal viability and abortion-for-"health" until birth.
And what do Americans support? Definitely not the legal regime created by Roe. A 2018 Gallup poll found that only 45 percent of Americans think abortion should be legal "for any reason" in the first trimester (as Roe mandated). Only 28 percent of Americans think abortion should be generally legal in the second trimester (as Roe mandated). Only 13 percent think it should be generally legal in the third trimester (as Roe effectively mandated).
Moreover, according to Gallup, a majority of 53 percent of Americans say abortion should be legal in only a few circumstances or in no circumstances. (Gallup has consistently found that a majority take this position.) Roe said abortion has to be legal in every circumstance.
But do Americans at least support the judicial philosophy that produced Roe? Not really. A 2017 poll, for example, found that a majority of 52 percent of Americans think Supreme Court justices should interpret the Constitution "as it was originally written" rather than substitute their own policy preferences in its place.
Roe, in short, is not and has never been consistent with the views of a majority of Americans.
Myth #2: Overturning Roe would make all abortions illegal
"Ending Roe," warns the president of NARAL Pro-Choice America, "means we have a country where abortion is illegal." That's not accurate.
Prior to 1973, the American people, through their elected representatives, determined the kind of abortion laws they wanted. With Roe, the Court took that power away from them by ruling that the U.S. Constitution includes a right to abortion—that it requires legalized abortion (and thus forbids legal protection of unborn children) regardless of what the people want. This nullified the democratically decided abortion laws of all 50 states.
So what would overturning Roe do? It would give back to Americans their legislative authority. In the immediate wake of that change, some states would keep policies of abortion-on-demand. Other states would provide very substantial legal protection for unborn children. Many states would fall somewhere in the middle.
When Roe is gone, abortion policy will be left to the democratic process, as most important public issues are. It will be up to us.
Myth #3: Overturning Roe would have nightmarish consequences for women
Defenders of abortion claim that all sorts of awful things would befall America if Roe were discarded.
The most frequent claim is that many women would die by undergoing dangerous, illegal abortions. "Overturning Roe would take us back to the days of women being seriously injured and dying because they can't get basic medical care," says U.S. Sen. Dianne Feinstein. "We've come too far to go back to those days." (By "basic medical care," Feinstein means abortion, not basic medical care, which would be unaffected by the reversal of Roe.)
History, however, tells a different story. Antibiotics and other medical advances produced a dramatic decline in abortion-related maternal deaths through the middle of the 20th century. This decline occurred before Roe and the nationwide legalization of abortion, which had no apparent effect on maternal mortality rates.
Indeed, a wealth of worldwide evidence shows that a high standard of maternal health simply does not require legalized abortion. Chile reduced maternal mortality to a level comparable to that of the U.S., for example, while also strengthening legal protection for unborn children. Maternal health in Ireland exceeded that of England and much of the developed world even as abortion was illegal.
There's no evidence whatsoever for the claim that new limits on abortion in the U.S. would lead to some kind of health disaster.
Another common worry is that women who have illegal abortions would be sent to prison. NARAL says, for example, that overturning Roe and prohibiting abortion would "criminalize women" and "punish women."
That's just false. Before Roe, when unborn children were largely protected by law, women were virtually never prosecuted for illegal abortions. There were good reasons for that (culpability and practical considerations are important factors). And this would remain the case in any post-Roe world that restores protection for unborn children.
Myth #4: The Court should uphold Roe because it's precedent
Politicians who support Roe often appeal to the idea that judges ought to adhere to past decisions (a practice called stare decisis). But everyone, including every pro-Roe senator and every member of the Supreme Court, agrees that at least some mistaken precedents should be overturned (and many have been). So should the precedent of Roe be overturned?
One crucial factor in the decision to overrule a past mistake is just how bad and constitutionally groundless it is. Roe is historically bad and has no constitutional grounding at all. The Constitution doesn't mention abortion, and the Court has never come up with a plausible or even coherent reason to think a right to abortion is implied. That's because it obviously isn't. In fact, the Americans who ratified the Fourteenth Amendment—the part of the Constitution from which Roe tried to derive an abortion right—also voted (during the same era) to enact statutes protecting unborn children from being killed by abortion. Not only didn't they agree to a right to abortion—they firmly and overwhelmingly rejected a right to abortion.
"[Roe] is bad because it is bad constitutional law," concludes the eminent legal scholar John Hart Ely (who supported legalized abortion as a matter of public policy), "or rather because it is not constitutional law and gives almost no sense of an obligation to try to be."
The "stability" of a precedent is another factor that can influence the decision to overturn. The Court's abortion jurisprudence, even after 45 years, is remarkably unstable. It frequently changes as the Court considers new cases and rules on new abortion-related questions. The Court has sometimes reversed itself on those questions or applied its abortion principles (such as Casey's "undue burden" standard) in inconsistent ways. The late Justice Antonin Scalia mockingly referred to this ongoing project as "the abortion umpiring business" and the "enterprise of devising an Abortion Code."
No one ever knows with confidence how the Court will rule on new abortion-related laws. That's because the persistence of Roe requires the justices to continue acting like legislators creating policy rather than like judges applying law that already exists—to continue usurping authority that belongs to the elected branches of government. That makes Roe a perpetually harmful mistake.
"We should get out of this area [of making abortion policy]," Scalia told the rest of the Court, "where we have no right to be, and where we do neither ourselves nor the country any good by remaining."
Why Roe must go
Judge Kavanaugh himself hit on the key issue in a 2017 speech. "[J]udges are confined to interpreting and applying the Constitution and laws as they are written and not as we might wish they were written," he explained. "[C]hanges to the Constitution and laws are to be made by the people through the amendment process and, where appropriate, through the legislative process—not by the courts snatching that constitutional or legislative authority for themselves."
The Supreme Court should overturn Roe because it's a lawless decision that snatched authority away from the American people. But Roe isn't merely that. It also produced a profoundly unjust legal regime with morally catastrophic results. It banned the protection from lethal violence of a whole class of innocent human beings. Some 60 million of those human beings have now been legally killed.
Reversing Roe and returning abortion policy to the legislatures will enable much greater protection of unborn children. It will at least allow for the possibility of equal protection of the human rights of all members of the human family. It will, ultimately, save millions of lives.
If the end of Roe v. Wade is "the end of the world as we know it," it's also the beginning of a more inclusive one.
This article appears in the July 2018 issue of NRL News.