The Constitution at a Crossroads

Will the Supreme Court Continue to Chip Away At, or Overrule, the Constitution’s Protection of Reproductive Choice? | Chapter 9

Over the next decade, Supreme Court decisions that address the constitutionality of restrictive federal and state laws 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.


“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.


More from Civil and Human Rights

Civil and Human Rights
September 12, 2018

It’s Time to Close a Loophole in the Constitution’s Double Jeopardy Rule

The Double Jeopardy Clause of the Fifth Amendment states that no one can be tried...
Civil and Human Rights
September 16, 2018

Understanding the three-fifths compromise

San Antonio Express-News
Constitution Day is today. The U.S. Constitution is a document that evolves with the times....
Civil and Human Rights
August 22, 2018

Toward a More Perfect Union: The LGBTQ Community and the Constitution

Host: American Constitution Society and Human Rights Campaign
Join ACS and HRC for an afternoon symposium addressing the relationship between the LGBTQ community,...
Participants: Praveen Fernandes, Katie Eyer, Caroline Fredrickson, Nancy J. Knauer, Sharon McGowan, Shannon Minter, Steve Sanders, Paul Smith, Ria Tabacco Mar, Harper Jean Tobin, Sarah Warbelow, JoDee Winterhof
Civil and Human Rights
September 21, 2018

The 14th Amendment at 150 Symposium

Ratified 150 years ago, the 14th Amendment has been called America’s “Second Founding.” The Bill...
Participants: Brianne J. Gorod, Hon. Judge Elizabeth L. Branch, Hon. Judge Douglas H. Ginsburg, Hon. Judge David R. Stras, Hon. Judge Timothy M. Tymkovich, Hon. Dale Wainwright, Hon. Judge Don R. Willett, Hon. Justice Patrick Wyrick, Dana Berliner, Evan D. Bernick, David Bernstein, Josh Blackman, Robert J. Cottrol, Hon. Dominic Draye, Katie Eyer, Aderson B. Francois, Christopher Green, Martha Jones, Kurt Lash, Hon. Elbert Lin, Gerard N. Magliocca, John Malcolm, Timothy Sandefur, Anthony Sanders, Ilya Shapiro, Samuel Spital, Rebecca E. Zietlow
Civil and Human Rights
August 9, 2018

Crisis In The Courts: The Future of LGBT Equality and the Federal Judiciary

Host: National LGBT Bar Association
Civil and Human Rights
July 19, 2018

Michael Anton’s Op-Ed on Ending Birthright Citizenship Is Racist, Ahistorical Gobbledygook

Should Donald Trump issue an executive order purporting to strip millions of children of immigrants...