Few Supreme Court cases have changed the trajectory of U.S. history as much as Roe v. Wade, which exactly 46 years ago unearthed a right to abortion in the emanations and “penumbras” of the Constitution.
The resulting wreckage has cost about 60 million unborn human beings their lives in legal abortions in the U.S. But the decision also did a great deal to fuel the intensely dysfunctional and highly polarized political landscape we now inhabit.
In Roe, as they had in the earlier Griswold v. Connecticut, unelected justices took for themselves the power to make thinly veiled legislative pronouncements, crafting what amounted to policy in an attempt to resolve what was then, as now, an intensely controversial question. Public opinion on the morality and legality of abortion was closely split in the 1970s, and far from settling the question for good, the decision in Roe inflamed the controversy.
Where once the liberals and their legislators in New York and California could legalize abortion, while Kansas and North Dakota could enact pro-life legislation based on their citizens’ more conservative views, Roe replaced federalism with an almost-blanket prohibition on abortion regulations.
In doing so, the court emboldened the second-wave feminist movement, which had campaigned vigorously for the legalization of abortion at the federal level and didn’t much care whether that goal was achieved through the methods laid out in the Constitution or in an extra-legislative power grab by the Court. Since 1973, those feminists and their ideological descendants have set about shoring up that unearned victory.
One key aspect of their effort has been a consistent push to wield the illogic of the Court — and, in recent decades especially, its 1992 decision in Planned Parenthood v. Casey, which replaced Roe’s trimester framework with the manifestly unclear “undue burden” standard — against any state government that might wish to implement abortion limitations of any kind. Consider the 2016 case Whole Women’s Health v. Hellerstedt, in which an abortion-clinic chain sued Texas over state regulations requiring that abortion facilities meet health and safety requirements and that abortionists have admitting privileges at local hospitals in case of emergency. The Court sided against the state.
There are also legal challenges pending against state laws that prohibit abortions targeting fetuses prenatally diagnosed with Down syndrome; abortions after 20 weeks of pregnancy, when scientific research suggests fetuses can begin to feel pain; and late-term, dismemberment abortions that fail to lethally inject the fetus prior to tearing it apart.
Roe and Casey then, as applied by most courts, appear to demand nothing less than total state capitulation to the whims of pregnant mothers who wish to abort, at any stage of pregnancy, for whatever reason, and by whatever means. And that’s how abortion-rights advocates intend to keep it. Their work has therefore required vociferously opposing any judicial nominee whom they fear would disrupt the carefully crafted latticework of unsound jurisprudence surrounding the “right to choose.”
Enter the would-be handmaids, who, despite maintaining the nearly unlimited right to dispense with their inconvenient or unwanted unborn, insist that the election of a vulgar Republican president has endangered their health, their freedom, and their very lives.
It was with shouts of “Roe!” that these progressive women began cloaking themselves in red and donning white bonnets, an homage to Margaret Atwood’s dystopian Handmaid’s Tale. It was for love of Roe that they conducted feverish protests in the halls of Congress to protest the confirmation of Brett Kavanaugh to the Supreme Court — even before allegations of sexual misconduct surfaced against him.
It was with Roe in mind that far too many in the media promoted increasingly foolish and uncorroborated stories about Kavanaugh and far too many on the left embraced and promoted Julie Swetnick’s outrageous gang-rape allegations against him, even after her story quickly fell apart.
It was for the sake of preserving Roe that Senator Ted Kennedy laid out the first vision of a Handmaid’s Tale America, insisting in a speech on the Senate floor that if Robert Bork were confirmed to the Supreme Court, “women would be forced into back-alley abortions . . . and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.”
It was the constitutional travesty of Roe that helped to create a political climate in which each presidential contest is an existential battle over who will select the super-legislators who govern our nation from the chambers of the Supreme Court.
And until Roe is gone, our politics of histrionics will remain.