Pro-Choice Scholars Divided Over Future of Roe at the Supreme Court

Kay Steiger

There's a lively debate in the pro-choice community over whether or not the Supreme Court is ready to overturn Roe.

Recently, the anti-choice movement has shown itself to be divided over
whether or not Justice Anthony Kennedy, commonly thought of as the new
"swing
vote
" on the Supreme Court, is ready to overturn Roe v. Wade.
But this same division on Kennedy’s position is reflected in the
pro-choice community. Some say it’s only a matter of time before Roe is
officially lost; others say that Roe may continue to stand as
precedent, even if the current court is amenable to restricting the
right to abortion in various ways.

Ann Bartow, professor of law at the University of South Carolina
and administrator of the Feminist Law Professors, recently wrote
that the Supreme Court already has the majority it needs to overturn
Roe and might just be waiting for President Bush to leave office to do
so. "Kennedy at one time was tepidly pro-choice, but he has been moving
against abortion over time. Most ominously, Kennedy authored the
Carhart majority opinion, which held that the Partial Birth Abortion
Act did not impermissibly burden a woman’s right to abortion," Bartow
wrote on the blog. "When Alito joined the Court, the gun was cocked. It
doesn’t matter who replaces Justice Stevens, should he retire. The
five votes are already there."

Bartow is referring to the second Carhart case, Gonzales v.
Carhart
, which challenged the federal Partial-Birth Abortion Ban Act
passed in 2003 (the first Carhart case, Stenberg v. Carhart, challenged
a similar statute passed in Nebraska). In Carhart II, Kennedy unveiled
worrisome language that signaled a significant departure from the
standards the Court has used in the past to protect the right to
abortion, Bartow says. Kennedy’s opinion noted that "it seems
unexceptionable to conclude some women come to regret their choice to
abort the infant life they once created and sustained" –- heavy-handed,
scientifically unsubstantiated language that lines up better with the
current anti-choice "abortion hurts women" rhetoric than the language
in the decision that upheld Roe in 1992, although allowing it to be
subject to various restrictions.

Bartow’s theory, then, is that the Supreme Court is simply waiting
for Bush to leave office to overturn Roe and throw a wrench into the
plans of a new administration, one that looks likely to be Democratic.
"They have the votes to take a case now, [what] they’re waiting for is
a Democratic president and Congress," Bartow told me over the phone.
"It would really stall any work they want to do." The Court did just
decline to hear three abortion-related cases this session, but has time
to accept a direct challenge to Roe later in its term – which either
the South Dakota abortion ban or the Colorado personhood amendment,
both on the ballot this November, could supply later this year.

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Bartow’s argument sparked a heated debate in the pro-choice
blogosphere. Scott Lemieux, an assistant professor of political science
at Hunter College in New York and contributor to the blog Lawyers, Guns
and Money
, disagrees with Bartow that the Court is "that crudely
political," even though he acknowledges that "to some degree, the
Supreme Court follows the election returns and it’s not a completely
apolitical body." Lemieux says that the Court elected to hear Planned
Parenthood v. Casey
in 1992 just before another high-stakes
presidential election. The ruling on Casey upheld the right to an
abortion, but established that regulations and restrictions could be
placed on that right, as long as it didn’t place an "undue burden" on
the woman. Kathryn Kolbert, the ACLU attorney who argued the case,
specifically tailored her argument to force the justices to address the
central holdings of Roe before the 1992 presidential election.

Lemieux also doesn’t believe that Chief Justice John Roberts and
Justice Samuel Alito, the two most recently confirmed justices
nominated under Bush and considered very conservative justices, are
eager to overturn Roe. "I think it’s very unlikely that Roberts and
Alito would be particularly interested in a 5-4 opinion explicitly
saying that Roe v. Wade is overruled. My guess is that Scalia and
Thomas are the only justices interested in doing that," Lemieux said.
He thinks that the two justices would rather hollow out Roe, placing
more and more restrictions on the right to abortion, rather than
outright overturning it.

What Roe Fails to Protect

Casey opened the door to regulations like waiting periods, parental
notification laws, and very specific regulations on abortion
facilities. Lemieux points out that "the only regulation [the Court]
struck down, the spousal notification requirement, is the only one that
would’ve affected a woman like [Sandra Day] O’Connor. The regulations
they upheld were all ones that would be no big deal if you were an
affluent woman living in a city, but if you’re not then it’s a big
deal."

Lemieux is suggesting that many low-income women and women living
in rural areas are essentially living in a world in which abortion is
so difficult and expensive to obtain that it might as well be illegal.
Thanks to the 1976 Hyde Amendment, the federal government is forbidden
from using Title X funds for abortion services. A 2005 documentary
produced by PBS’s Frontline revealed that there is just one abortion
clinic in the state of Mississippi. "What you are seeing is that poor
marginalized women do not have access [to abortion]," said Gaylon
Alcaraz, Executive Director of the Chicago Abortion Fund, a group that
is part of a national network that grants money to women for the
medical costs associated with having an abortion.

To Alcaraz, the debate over whether Roe v. Wade will be overturned
is irrelevant as long as the Hyde Amendment remains in place. "I think
there is definitely a big disconnect," Alcaraz said about the academic
debate over Roe v. Wade and the reality on the ground. Alcaraz notes that the
grassroots side needs to be just as important as the legal side; the Supreme Court isn’t ensuring access to abortion for many women, she says, even with Roe in place.

Related Posts

News Abortion

Reproductive Justice Groups Hit Back at RNC’s Anti-Choice Platform

Michelle D. Anderson

Reproductive rights and justice groups are greeting the Republican National Convention with billboards and media campaigns that challenge anti-choice policies.

Reproductive advocacy groups have moved to counter negative images that will be displayed this week during the Republican National Convention (RNC) in Cleveland, while educating the public about anti-choice legislation that has eroded abortion care access nationwide.

Donald Trump, the presumptive GOP nominee for president, along with Indiana Gov. Mike Pence (R), Trump’s choice for vice president, have supported a slew of anti-choice policies.

The National Institute for Reproductive Health is among the many groups bringing attention to the Republican Party’s anti-abortion platform. The New York City-based nonprofit organization this month erected six billboards near RNC headquarters and around downtown Cleveland hotels with the message, “If abortion is made illegal, how much time will a person serve?”

The institute’s campaign comes as Created Equal, an anti-abortion organization based in Columbus, Ohio, released its plans to use aerial advertising. The group’s plan was first reported by The Stream, a conservative Christian website.

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The site reported that the anti-choice banners would span 50 feet by 100 feet and seek to “pressure congressional Republicans into defunding Planned Parenthood.” Those plans were scrapped after the Federal Aviation Administration created a no-fly zone around both parties’ conventions.

Created Equal, which was banned from using similar messages on a large public monitor near the popular Alamo historic site in San Antonio, Texas, in 2014, did not respond to a request for comment on Thursday.

Andrea Miller, president of the National Institute for Reproductive Health, said in an interview with Rewire that Created Equal’s stance and tactics on abortion show how “dramatically out of touch” its leaders compared to where most of the public stands on reproductive rights. Last year, a Gallup poll suggested half of Americans supported a person’s right to have an abortion, while 44 percent considered themselves “pro-life.”

About 56 percent of U.S. adults believe abortion care should be legal all or most of the time, according to the Pew Research Center’s FactTank.

“It’s important to raise awareness about what the RNC platform has historically endorsed and what they have continued to endorse,” Miller told Rewire.

Miller noted that more than a dozen women, like Purvi Patel of Indiana, have been arrested or convicted of alleged self-induced abortion since 2004. The billboards, she said, help convey what might happen if the Republican Party platform becomes law across the country.

Miller said the National Institute for Reproductive Health’s campaign had been in the works for several months before Created Equal announced its now-cancelled aerial advertising plans. Although the group was not aware of Created Equal’s plans, staff anticipated that intimidating messages seeking to shame and stigmatize people would be used during the GOP convention, Miller said.

The institute, in a statement about its billboard campaign, noted that many are unaware of “both the number of anti-choice laws that have passed and their real-life consequences.” The group unveiled an in-depth analysis looking at how the RNC platform “has consistently sought to make abortion both illegal and inaccessible” over the last 30 years.

NARAL Pro-Choice Ohio last week began an online newspaper campaign that placed messages in the Cleveland Plain Dealer via Cleveland.com, the Columbus Dispatch, and the Dayton Daily News, NARAL Pro-Choice Ohio spokesman Gabriel Mann told Rewire.

The ads address actions carried out by Created Equal by asking, “When Did The Right To Life Become The Right To Terrorize Ohio Abortion Providers?”

“We’re looking to expose how bad [Created Equal has] been in these specific media markets in Ohio. Created Equal has targeted doctors outside their homes,” Mann said. “It’s been a very aggressive campaign.”

The NARAL ads direct readers to OhioAbortionFacts.org, an educational website created by NARAL; Planned Parenthood of Greater Ohio; the human rights and reproductive justice group, New Voices Cleveland; and Preterm, the only abortion provider located within Cleveland city limits.

The website provides visitors with a chronological look at anti-abortion restrictions that have been passed in Ohio since the landmark decision in Roe v. Wade in 1973.

In 2015, for example, Ohio’s Republican-held legislature passed a law requiring all abortion facilities to have a transfer agreement with a non-public hospital within 30 miles of their location. 

Like NARAL and the National Institute for Reproductive Health, Preterm has erected a communications campaign against the RNC platform. In Cleveland, that includes a billboard bearing the message, “End The Silence. End the Shame,” along a major highway near the airport, Miller said.

New Voices has focused its advocacy on combatting anti-choice policies and violence against Black women, especially on social media sites like Twitter.

After the police killing of Tamir Rice, a 12-year-old Black boy, New Voices collaborated with the Repeal Hyde Art Project to erect billboard signage showing that reproductive justice includes the right to raise children who are protected from police brutality.

Abortion is not the only issue that has become the subject of billboard advertising at the GOP convention.

Kansas-based environmental and LGBTQ rights group Planting Peace erected a billboard depicting Donald Trump kissing his former challenger Sen. Ted Cruz (R-Texas) just minutes from the RNC site, according to the Plain Dealer.

The billboard, which features the message, “Love Trumps Hate. End Homophobia,” calls for an “immediate change in the Republican Party platform with regard to our LGBT family and LGBT rights,” according to news reports.

CORRECTION: A version of this article incorrectly stated the percentage of Americans in favor of abortion rights. 

Culture & Conversation Abortion

With Buffer Zones and Decline of ‘Rescues’ Came Anti-Choice Legal Boom, Book Argues

Eleanor J. Bader

University of Denver's Joshua Wilson argues that prosecutions of abortion-clinic protesters and the decline of "rescue" groups in the 1980s and 1990s boosted conservative anti-abortion legal activism nationwide.

There is nothing startling or even new in University of Denver Professor Joshua C. Wilson’s The New States of Abortion Politics (Stanford University Press). But the concise volume—just 99 pages of text—pulls together several recent trends among abortion opponents and offers a clear assessment of where that movement is going.

As Wilson sees it, anti-choice activists have moved from the streets, sidewalks, and driveways surrounding clinics to the courts. This, he argues, represents not only a change of agitational location but also a strategic shift. Like many other scholars and advocates, Wilson interprets this as a move away from pushing for the complete reversal of Roe v. Wade and toward a more incremental, state-by-state winnowing of access to reproductive health care. Furthermore, he points out that it is no coincidence that this maneuver took root in the country’s most socially conservative regions—the South and Midwest—before expanding outward.

Wilson credits two factors with provoking this metamorphosis. The first was congressional passage of the Freedom of Access to Clinic Entrances (FACE) Act in 1994, legislation that imposed penalties on protesters who blocked patients and staff from entering or leaving reproductive health facilities. FACE led to the establishment of protest-free buffer zones at freestanding clinics, something anti-choicers saw as an infringement on their right to speak freely.

Not surprisingly, reproductive rights activists—especially those who became active in the 1980s and early 1990s as a response to blockades, butyric acid attacks, and various forms of property damage at abortion clinics—saw the zones as imperative. In their experiences, buffer zones were the only way to ensure that patients and staff could enter or leave a facility without being harassed or menaced.

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The second factor, Wilson writes, involved the reduced ranks of the so-called “rescue” movement, a fundamentalist effort led by the Lambs of Christ, Operation Rescue, Operation Save America, and Priests for Life. While these groups are former shadows of themselves, the end of the rescue era did not end anti-choice activism. Clinics continue to be picketed, and clinicians are still menaced. In fact, local protesters and groups such as 40 Days for Life and the Center for Medical Progress (which has exclusively targeted Planned Parenthood) negatively affect access to care. Unfortunately, Wilson does not tackle these updated forms of harassment and intimidation—or mention that some of the same players are involved, albeit in different roles.

Instead, he argues the two threads—FACE and the demise of most large-scale clinic protests—are thoroughly intertwined. Wilson accurately reports that the rescue movement of the late 1980s and early 1990s resulted in hundreds of arrests as well as fines and jail sentences for clinic blockaders. This, he writes, opened the door to right-wing Christian attorneys eager to make a name for themselves by representing arrested and incarcerated activists.

But the lawyers’ efforts did not stop there. Instead, they set their sights on FACE and challenged the statute on First Amendment grounds. As Wilson reports, for almost two decades, a loosely connected group of litigators and activists worked diligently to challenge the buffer zones’ legitimacy. Their efforts finally paid off in 2014, when the U.S. Supreme Court found that “protection against unwelcome speech cannot justify restrictions on the use of public streets and sidewalks.” In short, the decision in McCullen v. Coakley found that clinics could no longer ask the courts for blanket prohibitions on picketing outside their doors—even when they anticipated prayer vigils, demonstrations, or other disruptions. They had to wait until something happened.

This, of course, was bad news for people in need of abortions and other reproductive health services, and good news for the anti-choice activists and the lawyers who represented them. Indeed, the McCullen case was an enormous win for the conservative Christian legal community, which by the early 2000s had developed into a network united by opposition to abortion and LGBTQ rights.

The New States of Abortion Politics zeroes in on one of these legal groups: the well-heeled and virulently anti-choice Alliance Defending Freedom, previously known as the Alliance Defense Fund. It’s a chilling portrait.

According to Wilson, ADF’s budget was $40 million in 2012, a quarter of which came from the National Christian Foundation, an Alpharetta, Georgia, entity that claims to have distributed $6 billion in grants to right-wing Christian organizing efforts since 1982.

By any measure, ADF has been effective in promoting its multipronged agenda: “religious liberty, the sanctity of life, and marriage and the family.” In practical terms, this means opposing LGBTQ inclusion, abortion, marriage equality, and the right to determine one’s gender identity for oneself.

The group’s tentacles run deep. In addition to a staff of 51 full-time lawyers and hundreds of volunteers, a network of approximately 3,000 “allied attorneys” work in all 50 states to boost ADF’s agenda. Allies are required to sign a statement affirming their commitment to the Trinitarian Statement of Faith, a hallmark of fundamentalist Christianity that rests on a literal interpretation of biblical scripture. They also have to commit to providing 450 hours of pro bono legal work over three years to promote ADF’s interests—no matter their day job or other obligations. Unlike the American Bar Association, which encourages lawyers to provide free legal representation to poor clients, ADF’s allied attorneys steer clear of the indigent and instead focus exclusively on sexuality, reproduction, and social conservatism.

What’s more, by collaborating with other like-minded outfits—among them, Liberty Counsel and the American Center for Law and Justice—ADF provides conservative Christian lawyers with an opportunity to team up on both local and national cases. Periodic trainings—online as well as in-person ones—offer additional chances for skill development and schmoozing. Lastly, thanks to Americans United for Life, model legislation and sample legal briefs give ADF’s other allies an easy way to plug in and introduce ready-made bills to slowly but surely chip away at abortion, contraceptive access, and LGBTQ equality.

The upshot has been dramatic. Despite the recent Supreme Court win in Whole Woman’s Health v. Hellerstedt, the number of anti-choice measures passed by statehouses across the country has ramped up since 2011. Restrictions—ranging from parental consent provisions to mandatory ultrasound bills and expanded waiting periods for people seeking abortions—have been imposed. Needless to say, the situation is unlikely to improve appreciably for the foreseeable future. What’s more, the same people who oppose abortion have unleashed a backlash to marriage equality as well as anti-discrimination protections for the trans community, and their howls of disapproval have hit a fever pitch.

The end result, Wilson notes, is that the United States now has “an inconstant localized patchwork of rules” governing abortion; some counties persist in denying marriage licenses to LGBTQ couples, making homophobic public servants martyrs in some quarters. As for reproductive health care, it all depends on where one lives: By virtue of location, some people have relatively easy access to medical providers while others have to travel hundreds of miles and take multiple days off from work to end an unwanted pregnancy. Needless to say, this is highly pleasing to ADF’s attorneys and has served to bolster their fundraising efforts. After all, nothing brings in money faster than demonstrable success.

The New States of Abortion Politics is a sobering reminder of the gains won by the anti-choice movement. And while Wilson does not tip his hand to indicate his reaction to this or other conservative victories—he is merely the reporter—it is hard to read the volume as anything short of a call for renewed activism in support of reproductive rights, both in the courts and in the streets.