The Justice Chronicles, Volume 39: The First Monday In October

Historically the Supreme Court begins its term on the first Monday in October. Most of the time this date means little to anyone who doesn’t follow the court. But this year, well, it’s a different story.

For much of its history we’ve seen the court as being above politics and their decisions were unpredictable. Not so much today.

Today most descriptions of the court tell us that there are six conservatives: Chief Justice John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barret. There are also three liberals: Stephen Breyer, Sonia Sotomayor, and Elena Kagan.

This matters because this year they may render a decision on an issue that has divided our nation for more than sixty years: abortion. Before 1973 the ability of a pregnant woman to terminate (abort) her pregnancy depended mostly on where she lived and how much money she had. In 1971 a pregnant Texas woman wished to end her pregnancy but she lived in a state where abortion was illegal. She filed a lawsuit claiming that Texas violated her right to privacy and the case, Roe v. Wade made it to the Supreme Court.

On January 22, 1973 the court decided, by a vote of 7-2, that abortion in the first trimester (13 weeks) of pregnancy was within the rights of the mother and cannot be outlawed. Pregnancies in the 2nd trimester (14-26 weeks) could be terminated with restrictions and pregnancies after 26 weeks were protected. Since then it’s been assumed that abortion was unlawful when the fetus/child was viable, that is, could live outside the womb. Opinions differ but it’s generally held that a child at 24 weeks can live outside the womb (full term is 40 weeks). It didn’t take long to divide the country.

Those who opposed abortion identify as Pro Life and those who supported abortion identify as Pro Choice.

At first the only strong Pro Life voice in the United States was the Catholic Church but by the early 1980s they were joined by Evangelical Christians

Since then these groups have formed an uneasy alliance and virtually all their energy has focused them on overturning Roe v. Wade. During the 1980s this became a cause for the Republican Party and since 1984 it’s been enshrined in their platform. Republican Presidential candidates since then have all promised to appoint Supreme Court Justices that will vote to overturn Roe V. Wade.

We may be on the cusp of that. Of the 9 justices all six who are listed as conservatives have been appointed by Republican presidents. During their confirmation hearings they all promised not to have preconceived opinions on abortion and would decide any case on its merits.

Nobody believes that. As I write this the Court has agreed to hear the case of Dobbs v. Jackson Women’s Health Organization. Mississippi passed a law that prohibits abortion after the 12th week of pregnancy. Since this case was filed Texas passed a law that prohibits abortion after the 6th week of pregnancy (often before the woman knows she’s pregnant). If the court finds in favor of Mississippi it will, in essence, overturn Roe v. Wade.

Cards on the table, I’m pro life. I know any number of people who describe themselves as “oops babies.” In other words their conception was unplanned and unexpected, but not unloved. I’m not naive and I’m not certain that we will ever get to zero abortions. But I believe we can look to Switzerland for guidance. Theirs is a three pronged approach. They provide sex education in schools, they make birth control free and universally available, and they work to raise the socioeconomic level of all their citizens so that nobody chooses abortion out of economic desperation.

Their abortion rate isn’t zero but it’s pretty low. But reversing Roe v. Wade also won’t eliminate abortions in the United States. It will simply allow states to write their own laws (as they did before 1973). Mississippi and Texas will certainly outlaw abortions but states like California and New York certainly will not. Women with enough money will simply travel to states that allow abortion.

But perhaps most troubling of all, women in those states without the ability to travel find themselves with few options. Some of them will choose to have illegal abortions that often lack the safety measures they need.

Some will say that people who choose to break the law shouldn’t complain about bad outcomes. But many of these women are barely past being girls. Some pregnancies are not consensual and some of them are the result of sexual abuse by someone they knew who broke their trust.

Simply put, overturning Roe v. Wade won’t get us to a pro-life nation. I fear it will draw us further away.