Here Comes John Roberts, There Goes Roe v. Wade

Supporters of abortion rights prepare for the worst as chief justice wins confirmation

If you believe in reproductive choice, you might be crying yourself to sleep these days, as you’ve watched the conservative Ken doll also known as John Roberts sail toward appointment as our country’s most powerful judge. Or perhaps you’ve been pulling your hair out as you've heard pundit after pundit try to fill in the big blanks in what Roberts has said about how he’d rule as chief justice on the country’s most pressing issues. But maybe, just maybe, you’re doing what some of the most diligent women’s groups in this country are now doing: dispensing with the tears and angst, rolling up your sleeves, and trying to figure out what to do after Roberts takes the helm of the Supreme Court—courtesy of a 78-22 vote on Thursday that included the support of 22 Democrats.

Practical types probably don’t harbor many illusions about Roberts. This is a man, after all, who supported a memorial service for aborted fetuses as “an entirely appropriate means of calling attention to the abortion tragedy.” He’s married to a woman who serves as the lawyer for and is a major donor to an anti-abortion activist group. And he’s referred to Roe v. Wade, the ruling that established the right to abortion back in 1973, as “wrongly decided” and based on “the so-called right to privacy.” So even if they’re hoping for the best, pro-choice court watchers are no doubt assuming the worst.

Which is not to say anyone has given up the fight. NARAL, Planned Parenthood, and the National Organization for Women are just some of the groups that vehemently opposed Roberts, trying to call attention to his evasiveness when it comes to his real feelings about several established laws of the land, including the right to abortion. Several activists have pointed out the eerie similarity between Roberts’s evasive answers to questions about Roe at his Senate hearing and those of Clarence Thomas, who voted to overturn the decision a year after he joined the court.

President George W. Bush announcing the nomination of John Roberts for Chief Justice, September 5.
photo: White House photo by Paul Morse
President George W. Bush announcing the nomination of John Roberts for Chief Justice, September 5.

The first tests of how unfriendly a new court might be to reproductive rights are just around the corner. On Monday, Bush administration lawyers asked the Supreme Court to reinstate a federal law banning some abortionseven though several courts have already ruled the bans unconstitutional. And on November 30, the Supreme Court is scheduled to hear arguments in a case called Ayotte v. Planned Parenthood of Northern New England, its first abortion-related case in five years.

Ayotte wouldn’t overturn Roe, but it could gut it. One of the biggest issues at stake in the case is whether laws requiring minors to notify their parents before having abortions must contain exceptions for the health of the young woman. According to Nicole Berner, a staff attorney at the Planned Parenthood Federation of America, if the majority of justices side with Kelly Ayotte, the attorney general of New Hampshire, the health exception ruling could severely limit doctors and teens seeking abortions. “Even if she’s bleeding profusely and she could lose her kidney or liver function or fertility, the physician cannot go forward” with an abortion, says Berner. If they do defy parental notification laws and perform an abortion for health reasons, she adds, “providers would be at risk of losing their medical license, and criminal prosecution.”

Ayotte is far from the only abortion-related case in the pipeline. In the hope that Bush will succeed in appointing two justices who will rule against Roe, opponents of choice have been laying the groundwork for a Supreme Court test case for more than a year. “With the court in transition, anti-choice forces are aggressively putting through legislation that could be used to test Roe v. Wade,” explains Nancy Northup, president of the Center for Reproductive Rights. Indeed, in just the first five months of this year, 20 states enacted 27 laws designed to restrict access to abortion and reproductive health.

While many of the possible challenges to Roe aim merely to weaken or undercut the right to abortion, even the most optimistic on the pro-choice side are grappling with the possibility that the ruling could fall altogether. If it does, decisions about choice would revert to the states, some 30 of which stand to take abortion rights away, according to a report by the Center for Reproductive Rights. For service-providing groups, much of the preparation for this possibility consists of logistical problem solving. “We have people trying to answer questions like ‘How will our clinics in bordering states help women who will have to start traveling? And what do we do when a woman shows up on our doorstep bleeding’ ” from a self-induced abortion, says Planned Parenthood’s Berner.

Others are working to strengthen state laws that would protect abortion. The Center for Reproductive Rights has been poring over state constitutions and laws to see what past measures might possibly be resurrected post-Roe. “It’s going to be incredibly important not just to make sure that we can remove the old laws but also to continue to move forward when one can,” says the center’s Northup. And while six states already have “trigger laws” designed to outlaw abortion if Roe is overturned, the center is pondering how to create what might be called reverse-trigger laws, which would kick in to protect abortion rights. The center’s lawyers are working with legislators and attorneys general to strengthen and protect the right to abortion by passing legislation and updating state constitutions. At the same time, they are looking at ways to defang anti-abortion laws that have been on the books since before 1973.

Even while pro-choice groups are scrambling to figure out what will happen state by state, they may have to pay as much attention to what’s going on in Congress. “It’s going to be worse than it was pre-Roe,” warns Gloria Feldt, author of The War on Choice. “Then the fight was only at the state level.” Already Senator Rick Santorum, a fierce opponent of abortion, has said he would support legislation that would make it illegal to cross a state line to get one if Roe were overturned.

Advocates don’t have time to worry about such a law yet, though. For now, most are using their energy to prepare for the imminent crises. This defensive stance leaves little time for being thoughtful about the future, according to Wendy Chavkin, chair of the advocacy group Physicians for Reproductive Choice and Health.

“We’ve certainly realized since the last election how critically important it was to have a long-term strategy,” says Chavkin. “The problem is that we’re so busy fighting brush fires that we have no time to come up with one.”


Sharon Lerner is a senior fellow at the Center for New York City Affairs at Milano Graduate School at the New School.

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