Summary

“We don’t have to see a Roe v. Wade overturned in the Supreme Court to end it. . . . We want to. But if we chip away and chip away, we’ll find out that Roe really has no impact. And that’s what we are doing.”

~ Pat Mahoney, Christian Defense Coalition

No issue has divided the Supreme Court more sharply, along ideological lines, than the question whether the Constitution protects a fundamental right to reproductive choice. In the nearly forty years since the Court decided Roe v. Wade, the Justices have vehemently disagreed about whether the Constitution protects fundamental rights not explicitly enumerated in the text of the Constitution, about whether a woman’s right to reproductive choice is one of the fundamental rights that states must respect, and about how courts should review state laws restricting that right.

In 1992, after being repeatedly urged year after year by the Justice Department under Presidents Ronald Reagan and George H.W. Bush to overrule Roe, the Supreme Court, in its 5-4 ruling in Planned Parenthood v. Casey, substantially reaffirmed the ruling, relying in large measure on the doctrine of stare decisis. Surprising virtually everyone, Justice Kennedy, who had joined the anti-Roe bloc in decisions upholding restrictive laws in 1989, 1990, and 1991, became the fifth vote to reaffirm Roe’s protection of a right to reproductive freedom.

Since Casey, Justice Kennedy has drifted back to the right on this issue, joining the Court’s conservative Justices in a pair of decisions concerning the constitutionality of federal and state laws banning so-called “partial birth” abortions. In these cases, Justice Kennedy – alone among Roe’s supporters – gave a narrow construction to constitutional protection for reproductive freedom and a broad one to the authority of states to enact laws that promote the potential life of the fetus.

Today, almost two decades after Casey, Roe still hangs on by a thread, with supporters of a woman’s right to reproductive freedom dependent on the vote of Justice Kennedy, who has only once – in Casey itself – voted to strike down a restrictive state law. During the last several years, the Justices have been silent on these issues, but in the wake of the 2010 elections, state after state has passed new restrictions, requiring a woman to view a sonogram of the fetus, receive potentially misleading medical information about the risks of abortion, and, in one state, even submit to an interview and counseling by members of an anti-abortion crisis pregnancy center. Other states have gone ever further, banning all abortions after twenty weeks of pregnancy.

Over the next decade, Supreme Court decisions that address the constitutionality of these measures will give the Court’s conservatives further opportunities to chip away at a woman’s right to reproductive choice, possibly even setting the stage for a future showdown over Roe itself.