‘How Do We Save Roe?’ Is The Wrong Question

Each January, as the anniversary of Roe v. Wade approaches, pro-choice supporters wonder whether the decision will survive, and how to do it. Unfortunately, these are the wrong questions.

First, strictly speaking, Roe has already been set aside, at least in part. The relevant Supreme Court case on the question of abortion rights is now Planned Parenthood v. Casey, the 1992 decision that jettisoned the trimester framework created by Roe while leaving intact what the three justice plurality opinion in Casey called Roe’s central or essential holding: that women have a constitutional right to privacy protecting their right to an abortion before the fetus becomes viable.

But more importantly, neither Casey nor Roe itself prevented government regulation of abortion: abortion on demand at any time during pregnancy has never been the law of the land. In the years since Roe, the Supreme Court has frequently upheld legislative restrictions that make abortions more difficult or even, as a practical matter, impossible for some women to attain. The Hyde amendment prohibiting the use of Medicaid funds to pay for abortions unless the pregnant woman’s life is endangered, waiting periods, informed consent requirements, parental consent requirements for minors, the federal ban on so-called “partial birth abortions” (not a medical term, but an effective, though misleading, political one).

The reality is that access to abortion has been dramatically limited even though Roe has only been partially overruled (TRAP laws targeting family planning health centers for closure have been especially effective). In some ways, and for some women, it is effectively the case that Roe has already been rendered moot. As the American Prospect has observed, “existing law [already] allows states to effectively extinguish access to abortion.” Legislators understand this and have acted accordingly. In four states, just a single abortion clinic remains.

None of this is to say that Roe and Casey are meaningless. But for decades now (essentially, ever since Roe was first decided), the real fight has been in the legislative arena. The Supreme Court did not have the last word on the matter (though the justices seem to have incorrectly believed otherwise). Opponents of abortion understand very well that they can do quite a bit without completely overruling Roe—in fact, in some ways, it is to their advantage to keep the Supreme Court decisions in place in order to use them as a rallying cry for their base.

Besides, the two decisions rest on constitutionally shaky ground. The Court has identified a constitutional right to privacy as the basis for the right to abortion before fetal viability. But the right to privacy is, rightly, an extremely controversial concept. The word “privacy” does not appear in the Constitution itself. That is not necessarily a bar to its existence—implied constitutional rights and powers have been recognized in other areas, and the 9th Amendment itself offers support for the idea of implied rights. However, the Court did not base its decisions in Roe and Casey on the 9th Amendment. Instead, it relied on the doctrine of substantive due process—the idea that the due process clause in the 14th Amendment (or 5th, as applied to the federal government) protects certain fundamental rights, including the right to privacy, even though such rights are not expressly named in the Constitution. Substantive due process is most notoriously associated with early 20th century Court decisions that struck down maximum hour and minimum wage laws.

The reason the Court abandoned substantive due process in the context of economic regulation is that the doctrine seems to provide ready cover for judges to enshrine their personal policy choices into constitutional law. The same criticism—that substantive due process is an illegitimate doctrine—can be equally leveled when it is applied in the context of reproductive rights (as Ruth Bader Ginsburg herself recognized in a 1984 lecture she gave on Roe nine years before she joined the Supreme Court).

Instead of focusing on defending Roe, which requires defending its indefensible reliance on substantive due process, advocates for reproductive rights ought to adopt a strategy that instead places their opponents on the defensive. This can be done, or at least begun, by asking a simple question: Why do opponents of abortion support restrictions or even a broad ban on abortion?

It is clear that legislative and other efforts to restrict abortion are rooted in religious objections, stemming from the idea that personhood begins at conception. This idea is not a matter of scientific consensus, but a specific religious view—one that is hardly shared by all faiths. The logic of these anti-abortion voices suggests a much clearer constitutional basis for supporting abortion rights than the right to privacy: the 1st Amendment’s Establishment Clause, which provides that “Congress shall make no law respecting an establishment of religion” (a prohibition now applied to state and local government as well).

Although the scope and reach of the Establishment Clause is a matter of debate, it’s clear that the Clause prohibits government from favoring one religion or one religious view over another. Since advocates of restrictions on abortion aim to do just that—to impose their own specific religious view on all women—advocates of abortion rights can invoke the Establishment Clause as a powerful tool that can place opponents of abortion on the defensive in both the legislative and the judicial arenas.

Even though the fight over access to abortion mostly takes place in the legislative arena, it’s still important to ground the defense of abortion rights in constitutional terms. Judges are not the only ones charged with upholding and interpreting the Constitution. Legislators can, and should, play a role in shaping constitutional meaning.

There is one final reason why it’s a mistake to focus on Roe: doing so implies that the current fight is merely about preventing a return to the past, when women forced to receive illegal abortions often ended up dead or admitted to hospitals as a result. This is not to say that this history is anything but chilling and horrific. No one should argue that the pre-Roe climate for women seeking abortions should be forgotten or minimized in any way. But focusing on a defense of the 1973 Roe decision runs the risk of distracting attention from the different, but still grave and pressing, issues that many women who need abortions today face.

Making the case for abortion rights isn’t just about staving off a pre-Roe world. It’s about highlighting today’s problems, and making sure women today have a voice. There are projects committed to doing this—for instance the 1 in 3 Campaign, a project of Advocates for Youth (disclosure: my wife works for Advocates for Youth, though neither she nor Advocates for Youth had anything to do with this piece). This work is essential in keeping the case for abortion rights compelling and relevant, rather than associating it with a 42-year-old Supreme Court decision that has failed to effectively protect access to abortions for the women who need them.

Chris Edelson is an assistant professor of government in American University’s School of Public Affairs. He is the author of Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror, published in 2013 by the University of Wisconsin Press.