Abortion case: Much more than women's rights at stake

Gordon L. Weil

Abortion has again arrived at the U.S. Supreme Court.  The issue boils down to whether the Court will abandon its Roe v. Wade ruling that abortion is a federally protected right and leave the issue to the states.

Its decision could place abortion at the center of next year’s political campaigns.

Abortion may be the single most controversial national issue, but there is much more behind the conflict than the question before the Court. Because abortion has been so heavily politicized, its decision will affect both national politics and the Court’s own standing.

The formal question is whether the Constitution protects a woman’s right to have an abortion.  Roe supporters maintain that the natural right of a person to control their own body is protected.  Opponents reject any such right, because they argue that abortion ends the rights of another person, the fetus.

When people assert conflicting rights, they turn to government to determine or reconcile them.  Congress has avoided action.  In effect, the political decision that was too hot for Congress was passed to the Supreme Court, putting it in the middle of the controversy.

In Roe and later decisions, it ruled that federal protection of the abortion right exists in the early stages of pregnancy, but not afterwards.  Abortion opponents, including some state governments, reject those decisions and seek Roe’s reversal, ending all federal protection.

Unable until now to reverse Roe, some states, like Mississippi in the current case, keep trying to narrow the effect of the Court’s rulings. 

Drawing abortion into the center of partisan politics began decades ago. In 1969, President Richard Nixon launched the idea of a “great silent majority.” Ever since, the Republican Party has worked hard to activate that majority by encouraging and exploiting divisive social issues. 

These are “wedge” issues.  The Republicans expect to be repaid for backing dedicated advocates on these issues by gaining their votes.  The single-issue support gives them a blank check for unrelated policies.  For example, if you elect the GOP because of abortion, you give it a free hand on the environment.  

After the 1973 Roe decision, opposition to abortion became a leading wedge issue for the GOP.

The Court’s choice is whether to keep Roe, even with more limits, or declare that its previous decision was a mistake.  If the Court retains Roe in any form, abortion opponents will campaign hard for candidates who will back more supportive appointments to the Court and restrictive legislation. The GOP will inevitably exploit the issue.

If the Court overturns Roe, some believe the result will be a divided country in which some states protect abortions while others outlaw it.  The GOP would relieve some pressure, and an uneasy accommodation would occur.  That’s an illusion.

Anti-abortion advocates will shift their attention to the states, mostly Democratic, which protect the right.  These states will come under heavy pressure, and the GOP could seek to increase its active support there.  In short, the conflict would continue, driven by the GOP effort to gain control of state governments.

Either way, the Supreme Court’s ivory tower image would be tarnished.  Its decision would add to its being seen more as a political agency than as a judicial body.  Under continual pressure, it has arrived at this position by its retreat from Roe.

It could retain respect if it chose to keep a modified Roe on the grounds of following binding precedent.  Sen. Susan Collins reported that Justice Kavanaugh told her that he regarded the case as “settled law,” gaining her support by implying that he would defer to it as a Court precedent. 

Yet precedents are often reversed.  Now Kavanaugh looks ready to overturn Roe.   Either he offered her a hollow assurance or she mistakenly gave “settled law” more weight than it deserved.

The Court has been intentionally loaded with GOP appointees whose coolness to Roe is obvious. Stacking the Court for partisan purposes goes back to John Adams, the second president.  His Federalist justices dominated the Court long after his party had died.

Chief Justice John Roberts is trying to reduce the political effect of a Court decision. He seems ready to shorten the protected period, but keep Roe.  The nature of a good compromise is that both sides end up equally unhappy.  This could qualify as a compromise, but not the last word.

The decision, which will come in an election year, may be an historic turning point. While the issue is abortion, the struggle for political control and respect for the Supreme Court are fundamental concerns. 

Beyond arguing the merits of the abortion case, Democrats need to highlight more aggressively the broader political strategy linked with it. Voters should better understand the full implications of what is at stake in the case.