Brett Kavanaugh, a Catholic, who is a judge on the U.S. Court of Appeals for the District of Columbia Circuit, smiles July 9 at the White House in Washington after President Donald Trump named him his Supreme Court nominee. CNS photo/Jim Bourg, Reuters

Charles Lewis: Don’t expect Roe v. Wade debate to end

By 
  • July 19, 2018

You could almost hear the champagne corks popping below the border when U.S. Supreme Court Justice Anthony Kennedy announced his resignation. 

For those in the United States who oppose abortion, the dream of overturning Roe v. Wade suddenly seemed within reach. 

In 1973 the court upheld a women’s right to have an abortion in the first trimester. It was a decision that New York Times columnist Ross Douthat recently called our “inhumane abortion settlement” and added ridding the country of this odious decision could “save our culture, if it’s ever to be saved.”

Many Americans who voted for Donald Trump were willing to overlook his personal failings for the hope of a conservative, pro-life Supreme Court. In 2017 Trump appointed conservative Neil Gorsuch, who replaced the late Antonin Scalia. Now with the nomination of Brett Kavanaugh, a Catholic, the court will have a conservative majority — assuming the Senate confirms him, which is highly likely. A number of pro-life groups noted their approval at Trump’s selection.

“Judge Kavanaugh has a solid record of protecting life and constitutional rights,” Catholic Medical Association President Peter T. Morrow said in a release. 

“Judge Kavanaugh will be an originalist Justice, committed to the text of the Constitution and to the rule of law, including legal protections for human life,” said Catherine Glenn Foster, president of Americans United for Life.

So does this mean that abortion could become illegal in the U.S.? Or is the cheering premature?

No one is really sure what Kavanaugh will do from the bench or even what he thinks of Roe. In 2006 at a Senate hearing for his nomination as a circuit court judge, he was pressed by Democrats to explain his position on abortion. But he refused to give his personal opinion: “If confirmed to the DC Circuit, I would follow Roe v. Wade faithfully and fully. That would be binding precedent of the court. It has been decided by the Supreme Court,” he said.

Given the history of the court, his comments might mean a lot or nothing at all. Justice Kennedy, a conservative, voted to make same-sex marriage legal. No one could have predicted that.

Right after Kennedy resigned, and before Kavanaugh was nominated, the Wall Street Journal wrote an excellent editorial about how for years liberals and pro-abortion activists have gone into a tizzy with every new court appointee. Yet, for all that angst, little has changed.

“The liberal line is always that Roe hangs by a judicial thread, and one more conservative Justice will doom it. Yet Roe still stands after nearly five decades. Our guess is that this will be true even if President Trump nominates another Justice Gorsuch. The reason is the power of … precedent, and how conservatives view the role of the Court in supporting the credibility of the law.”

It continued: “No one on Mr. Trump’s list of nominees will claim to want to overturn Roe — and not because they are lying. In their caution and deference to precedent, they will be showing proper conservative respect for the law and the reputation of the court.” 

For the sake of argument, suppose the court gets a chance to overturn Roe. What then?

The first thing to note is that while Roe made abortion legal, overturning it will not make abortion illegal. It will simply mean that states will get to choose what to do. 

It is likely that about 18 to 20 states will either make it illegal or put huge restrictions on procuring abortion. That means for the vast majority of states it will be business as usual. It also means that those seeking an abortion in states with strong restrictions will simply go to another state. 

There is also the question of how far those 18 to 20 states will go. Politicians seem to like to be re-elected and they might think twice when they study recent polls. 

A Pew Research Center poll found last year that nearly 70 per cent of Americans support Roe, including a slim majority of Republicans. 

Another Pew poll that same year found 70 per cent of white Evangelicals wanted Roe gone while 53 per cent of Catholics supported Roe. Also supporting Roe were 55 per cent of black Protestants and 67 per cent of white mainline Protestants.

You could expect that in the aftermath of Roe being overturned, states that ban abortion would face unprecedented political battles. Yet that may be the best argument for overturning Roe. 

“Somewhat paradoxically, the way to make abortion less contentious is to throw the matter back to the states so that people can argue about it,” wrote Megan McArdle in the Washington Post. “Debating the difficult decisions regarding gestational age and circumstances would force people to confront the hard questions that abortion entails….”

This battle is not running out of gas anytime soon.

(Lewis is a Toronto writer and regular contributor to The Catholic Register.)

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