Since the announcement of the retirement of Justice Anthony Kennedy, the Left has been obsessed with Roe vs. Wade, the 1973 Supreme Court decision that legalized abortion throughout pregnancy. With invocations of Armageddon and cries that the sky is falling, voices of the Democratic Party, Planned Parenthood, and numerous other abortion-supporters are painting nightmare scenarios of the disappearance of Roe vs. Wade, and along with it, of any semblance of women’s rights in America.
Their concerns are oversimplified and, in fact, a sign of the weakness of their position.
First of all, we’ve been down this road before. Ever since the nomination of Sandra Day O’Connor by President Reagan in 1981, the other side has been fear-mongering about the downfall of Roe vs. Wade. Within 45 minutes of the nomination of Robert Bork in 1987, Senator Ted Kennedy declared on the floor of the Senate that “Robert Bork’s America is a land in which women would be forced into back-alley abortions.” The nomination of David Souter, who was originally expected to vote with the conservative wing of the Court, was protested by the National Organization for Women and its leader Molly Yard who testified that Souter would “end freedom for women in this country.”
And now, with Judge Kavanaugh’s nomination, the same dire predictions are being made. And the raucous rally in front of the Supreme Court on the night his nomination was announced was filled with “Protect Roe” signs.
While it is true that this nomination shifts the balance toward the conservative wing of an often divided Court, we simply do not know how or when Roe vs. Wade will be reversed. Only one Justice, Clarence Thomas, has indicated explicitly his willingness to do so.
It is reasonable to think, of course, that judges, including Brett Kavanaugh, who are opposed to judicial activism, would oppose a decision that one of its dissenters, Justice Byron White, called “an exercise of raw judicial power” and that even many pro-choice constitutional experts criticize as completely lacking in constitutional reasoning.
But what the Justices will say about a particular case, and how many will say it, is known only when the case is decided.
The other side’s pro-Roe hysteria does not flow from any understanding of the Court’s abortion jurisprudence, and not even from any knowledge of how Judge Brett Kavanaugh would rule, but simply from an orchestrated effort to scare off Senators and the public from supporting the confirmation of any nominee of President Trump.
The Democrat Left knows full well that the American people neither know what Roe specifically said, nor would support it if they did. Opinion polls about Roe over the last four decades have been analyzed to determine how the questions frame the decision, and most of the time they misrepresent it. “Do you support,” they usually ask, “the Roe vs. Wade decision which allows a woman to have an abortion in the first twelve weeks of pregnancy?”
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But that is not the policy of Roe vs. Wade.
The policy of Roe vs. Wade is that it allows abortion throughout pregnancy, with no requirement that there be any reason given for the abortion and no requirement that the states place any limits on the procedure or its timing.
The American people have never supported such a policy. To verify that, just ask them specifically when they think abortion should be permitted. The January 2018 Marist poll on abortion, for instance, shows that the percentage of the American public that agrees that abortion should be available throughout pregnancy is a whopping 12 percent.
So it is disingenuous for the Left to cry out that most Americans support Roe. As I saw close-up, by being her spiritual director, even the “Jane Roe” of Roe vs. Wade, Norma McCorvey, did not support that policy and spent the latter part of her life working to end abortion.
Senate Democrats and their allies know full well, therefore, that if the abortion issue is decided by the voters and their elected lawmakers rather than taken out of their hands by the Court — as has been the case since 1973 — there is no way that the extreme abortion policy we now have can be sustained.
I am convinced that indeed, Roe vs. Wade will one day be reversed. But that will not be the Armageddon scene that Senate Democrats will try to paint during the upcoming Supreme Court confirmation hearings, nor will it be an automatic and immediate result of the confirmation of Brett Kavanaugh. Indeed, when it happens, it will be the unfolding of a position that the American people are already far closer to than the Left wants us to imagine.