The Corner

Politics & Policy

With Kavanaugh, Roe Will Bend but not Break

I worry that too many pro-lifers believe that the nomination and presumed confirmation of Judge Brett Kavanaugh to the Supreme Court will finally bring down Roe v. Wade, returning the contentious issue of abortion to the states.

Color me very dubious. The Supreme Court has always been as much a political body as a legal one. Reversing Roe would not just bring about increased social conflict, but spark a raging cultural conflagration. As he demonstrated in confirming Obamacare, Chief Justice Roberts will be loath to allow his beloved Supreme Court to be in the vortex of such turmoil — even though the Roe justices created the vortex in the first place.

I think some other conservative justices — other than Thomas — might be similarly reticent. If I am right, it would take more than the 5-4 conservative majority on the High Bench to make Roe go the way of Plessy v. Ferguson.

I do, however, believe that Kavanaugh’s elevation will lead to SCOTUS allowing greater state regulation of abortion than it has heretofore permitted. In other words, to the fury of the increasingly openly pro-abortion enthusiasts — and the pronounced disappointment of pro-lifers — in the near term at least, Roe will probably bend, but it will not break.

If that discourages you, take heart. Had Hillary Clinton been elected, she would have put justices on the Supreme Court who would have shifted the constitutional justification of abortion rights from privacy to women’s equality — along the lines envisioned by Ruth Bader Ginsburg. Such an abortion jurisprudence would permit no regulation of abortion beyond ensuring proper clinic hygiene.

If my prediction is correct, will pro-lifers accept a partial victory and continue the struggle — or decide they have been betrayed and give up on political activism? I don’t know. But the many members of the movement I have met over the years do not appear to be the quitting kind.

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