Pro-life legal counsel says legislators see "writing on the wall" in a changing Supreme Court.
There has been a slew of state-level legislation seeking to maintain and expand access to abortion, such as New York’s Reproductive Health Act, and it has riled up pro-life advocates. But some see the flurry of legislative activity as a sign that Roe v. Wade’s days are numbered. What other reason could there be for the new laws, pro-lifers reason, than ensuring that abortion will continue to be legal in the state, even if the U.S. Supreme Court overturns the 1973 decision that liberalized abortion laws nationwide?
“In the last several years, you’ll see one or two states considering bills like this, but this recent tidal wave, led by New York, has only hit this year,” Steven H. Aden, chief legal officer and general counsel of Americans United for Life, said in an interview. “I think it’s possible that the accession of Justice [Brett M] Kavanaugh to the Supreme Court has something to do with it. I think the pro-life nature of the Supreme Court posing something of a threat to [Roe], and probably that’s why they’re willing to do this. I presume it will only accelerate further if there’s another appointment” by President Donald J. Trump or another conservative president.
“Clearly the pro-abortion forces are driving hard in the states to shore up what they perceive to be their political gains on the abortion issue, and it seems clear to me that they’re anticipating the overturn of Roe in court,” Aden said. “I think they see the handwriting on the wall.”
Aden said that some of the recent state abortion bills, such as in New York, New Mexico, Rhode Island, and Vermont, are “all much more extreme than what Roe requires.” Advocates for the legislation are “being duplicitous when they say all they’re doing is codifying the Roe-style right to an abortion in state law,” he charged. “What they are proposing in most places goes well beyond what Roe requires a state to do to protect the so-called fundamental right to abortion. The fact is Roe has become a shadow of its former self over the last 46 years … and what they’re trying to do is take the issue back to the state it was over 40 years ago, before the Supreme Court approved health and safety rules for abortion providers in Planned Parenthood v. Casey in 1992, before the Supreme Court clarified that states can limit abortion to only licensed physicians, before the Supreme Court clarified that public funds need not be collected for elective abortion.
“So the extreme nature of these bills really belies their argument that they are trying to protect a right to abortion because that right that they say was announced in Roe no longer exists in the form it took in Roe,” Aden insisted.
But for Lucinda M. Finley, Professor of Trial and Appellate Advocacy at the State University of New York at Buffalo, the idea that states are passing such laws out of a fear that Roe’s days are numbered is “laughable.” New York’s Reproductive Health Act had been a legislative priority for Democratic lawmakers in New York long before even Trump’s presidential campaign. Democrats only succeeded in passing the bill this year because their party finally gained control of the New York State Senate in last November’s elections.
“What changed in New York was not any sense of impending doom but simply the realpolitik of finally, after the 2018 midterm elections, Democrats now completely control both chambers and the governorship and now had the real political power and votes to pass this,” Finley said in an interview. “Not because of Kavanaugh.”
“Certainly, there is a great deal of concern about what might happen should the Supreme Court accept a case that involves a state law that currently is unconstitutional under Roe,” Finley said. “But I don’t think that’s with a sense of panic and ‘concession’ that Roe will inevitably be overruled. In fact there are many people who study this issue—scholars and activists alike—who say that they think the Supreme Court will not be in any rush to take a case that would require revisiting Roe and that, were they to take such a case, Chief Justice [John] Roberts, as someone who fundamentally is an institutionalist, who cares about the perceived integrity of the institution and the perception that it is above politics, has a better than 50 percent chance of now becoming this [Anthony] Kennedy type of vote where, whatever his personal views are, he would say the law is settled and there’s no need to revisit it.”
Finley also disagrees with Aden’s assessment that New York’s new law is extreme. She said the law removes abortion from the criminal code and puts the regulation of it into the public health code, “which is not extreme at all.”
“In fact, there are many states, including politically anti-abortion states—Florida, for example—where long ago it was moved out of the criminal code and into the public health code, and many people who oppose abortion have advocated for health regulations of it. So that’s not extreme,” she contended.
Finley explained further that New York’s RHA expands the conditions for abortions to be performed after 24 weeks gestation to include the health of the mother, as well as her life. That, she said, is consistent with Roe and Casey.
“So, post-24 weeks, if whatever is going on with the pregnancy and her health may not kill her but would cause serious impacts to her health, that now can be a legally-performed late-term abortion in New York,” she said. “There had been women who, late in their pregnancy, had developed either severe health problems or discovered tragic fetal anomalies that were inconsistent with the fetus ever living outside the womb, and her health care professionals thinking it was far better for her not to have to carry a doomed pregnancy to term, and those women were having to spend tens of thousands of dollars to fly to Colorado and a few other states where there are providers who are qualified to do very very late-term abortions for health reasons. Legislators in New York said that forcing our own citizens who have serious health problems to endure the additional strain—both financial and physical—of having to make long journeys to get a qualified medical person to take care of these serious problems is unfair … That’s the reason for that change, and it’s completely consistent with Roe and it’s not extreme at all.”
Kathleen M. Gallagher, a spokeswoman for the New York State Catholic Conference, disagrees. “If lawmakers and the governor had really wanted to insert a ‘grave physical health’ exception into New York law, they could have done that, as other states have done,” Gallagher said. “For example, Pennsylvania’s law says abortion is restricted only to cases when the life of the mother is seriously threatened, or when ‘pregnancy would result in irreversible impairment of a major bodily function.'”
Instead, Gallagher charged, New York legislators “deliberately inserted the broadest of loopholes—a ‘health’ exception—which has been interpreted by the Supreme Court as ‘the medical judgment may be exercised in the light of all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the well-being of the patient. All these factors may relate to health.’
“We are left not with legalized late-term abortions for severe physical health problems, but with abortion-on-demand, for any reason, up to birth,” Gallagher concluded.
A similar debate played out in Virginia this week, when state legislator Kathy Tran introduced a bill allowing for abortions through the third trimester. A video of Tran admitting that her legislation would allow abortion even while a woman is in the process of delivering the baby went viral online. The bill was tabled in committee.
Pro-abortion legislators’ insistence that such bills would merely protect women in extreme circumstances prompted Catholic Culture author Phil Lawler to comment, “If we can coolly accept the deliberate destruction of a baby who is not expected to live for more than a few days, what’s to prevent the killing of a child who would only last a few months, or a few years? Why should we flinch at suggestions that a handicapped child or an elderly person should be taken away for a sterile ‘medically necessary’ execution? We are no longer on a slippery slope; we’ve arrived at the bottom.”
Michael New, Associate Scholar at the Charlotte Lozier Institute, is not surprised by the passage of New York State’s Reproductive Health Act. “I never really expected New York to protect unborn children the minute Roe was overturned,” he quipped. “I think pro-lifers realize that Roe is an important step but it’s not going to represent a final victory, that we have to take the fight to the states. And we will be able to do things in a lot of red states and I think even a lot of purple states will be sympathetic to enacting protections for the unborn. Obviously, our work is cut out for us in the blue states. Obviously this is a long term battle, and I think pro-lifers see it that way.”
And Catherine Glenn Foster, President and CEO of Americans United for Life, also remained hopeful. However extreme New York’s and similar legislation is, “these bills also show that democracy works, and that the Supreme Court should get out of the way,” Foster said, in an apparent reference to a hoped-for overruling of Roe. “Let the American people and their elected representatives handle this issue. When the Supreme Court gets out the way, we welcome a return of this critical issue to the states.”