Let’s Face The Illusions . . . About Roe, The Court, And The Kavanaugh Confirmation

By JACK KENNY

Hold the “hallelujahs.” Brett Kavanaugh is now a justice on the U.S. Supreme Court, but don’t expect him to be the much anticipated and much feared “fifth vote” to overturn the High Court’s Roe v. Wade decision issued 45 years ago and upheld by the court on subsequent decisions, most notably, Planned Parenthood v. Casey in 1992.
First of all, it is a considerable leap to assume that there are now four votes on the court to overturn Roe. The last two Republican nominees, Roberts and Alito, both said in public hearings that they regarded Roe as “settled law,” entitled to the protection of a due respect for “precedent.” Justice Scalia is dead and Clarence Thomas remains the only member of the Supreme Court who might reasonably be assumed to be ready and willing to cast a vote to overturn Roe.
Secondly, we have Judge Kavanaugh’s word, as related by Sen. Susan Collins, that he would not be part of a 5-4 majority to nullify the “abortion rights” decision. The Maine Republican, minutes after saying she did not believe there should be a “litmus test” for Supreme Court nominees, cited that assurance from nominee Kavanaugh as her major reason for voting for his confirmation.
Her speech should be read carefully and critically. She was quite emphatic in dismissing the plank in the Republican platform promising the appointment of justices who would overturn Roe. As Collins noted, that plank has been in the GOP platform since 1980, and since that time nominations to the Supreme Court by Republican presidents have included those of Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter, the trio that wrote the opinion of the court in the aforementioned Planned Parenthood v. Casey, upholding Roe, albeit with some minor qualifications. So much for Republican promises.
Face it, pro-lifers. The only way we would get five solid anti-Roe votes on the Supreme Court is if a court-packing plan like FDR’s were actually enacted and there were eventually 15 Supreme Court justices. Then, of course, five votes would be very much a minority and “abortion rights” would still be quite safe.
The Roe v. Wade decision changed American politics in more ways that we might realize. Prior to Roe, “abortion rights” were the hobbyhorse of lawyers and intellectuals, most of them from the upper strata of society. Suddenly in Roe, there was what dissenting Justice Byron White (a Kennedy appointee) called a “freshly minted” constitutional right of abortion.
This forced a realignment of the two major parties that most historians have overlooked. Previously the Democratic Party’s claim to the votes of the poor was based on economics and social standing. As my father explained to me when I was seven years old, the Republican Party was the party of the “big shots” and the Democratic Party was the party of the workingman. If I should ever become a “big shot,” he explained, he would expect me to vote Republican, because that would be where my interests lie.
I have often voted Republican, but as far as becoming a “big shot,” dear old Dad need not have worried.
I would suggest three events forced a realignment of the two parties. The first, the High Court’s unanimous Brown v. Board of Education decision in 1954, did not by itself lead to any realignment. The ruling by Republican Chief Justice Earl Warren and his colleagues merely, for the time being, reinforced the opposition to civil rights and the “party of Lincoln” by the solidly Democratic South.
But when Democratic President Lyndon Johnson pushed the 1964 Civil Rights bill through Congress, that coalition began to crack. Sen. Strom Thurmond of South Carolina switched parties to join the GOP, then headed by long-shot presidential candidate, Barry M. Goldwater, who was part of a Republican minority opposing the legislation.
The opposition broadened considerably a few years later when the Brown decision was interpreted to require the forced busing of schoolchildren across district lines to achieve racial integration of the public schools in the whole nation, not just in the legally segregated South. The Nixon administration, then in office, publicly opposed the forced busing even while lawyers in the administration’s justice department were filing one lawsuit after another to require and enforce it.
Nixon, we might recall, received a healthy share of the black vote when he lost to John F. Kennedy in 1960. The 1964 Civil Rights Act and the opposition to it by the GOP presidential candidate in 1964 changed that dramatically. Ever since, some 90 percent of the black vote has gone to Democrats. In winning the White House in 1968, Nixon became the candidate and beneficiary of the Southern coalition, winning key Southern states as well as votes in the rest of the country from people who thought the civil rights revolution was going too far, too fast. Still, he won the narrowest of victories over veteran civil rights champion Hubert Humphrey.
Then came the Roe v. Wade decision at the very beginning of Nixon’s second term, on January 22, 1973. It followed a report by a commission appointed by President Nixon to explore the issue of what had been widely heralded as “overpopulation.” Though couched in diplomatic and general welfare language, the largely Republican and thoroughly establishment commission recommended birth control and abortion as means of limiting the population, especially among the poorer in society.
Nixon immediately denounced the report, firming up his support among cultural conservatives, especially Catholics. The Roe v. Wade decision provided Nixon and the Republicans with a ready-made “wedge” issue. There was already a National Right to Life Committee and other anti-abortion groups looking to rally behind a party and candidates who would support the pro-life cause.
It was a bandwagon made for Nixon and the GOP, most of whom quickly became anti-abortion. While most Democrats had opposed abortion also, once Nixon became opposed to it, abortion became a cause for Democrats to celebrate and defend. Aided by a liberal national media, the “right to life” became “a woman’s right to choose.”
Both sides cynically primed the issue for all the votes and all the dollars it was, and still is, worth. Yet once in office, elected officials on both sides of the abortion divide have been content to leave the issue with the courts.
Democratic majorities in Congress never mustered enough votes to pass the Freedom of Choice Act that would have codified the Roe ruling.
Republican majorities never advanced the Human Life Amendment, nor passed legislation declaring the preborn to be persons under the Fourteenth Amendment, nor moved to limit the jurisdiction of the judiciary in matters of abortion. Thus, the battle every time there’s a vacancy on the High Court, especially if the vacancy has been created by the death or retirement of a justice considered to be either a believer in “abortion rights” or a “swing” vote.
In Harry Blackmun’s majority opinion for the court in Roe v. Wade, he was somewhat vague as to where the invisible “right” to abortion was located in the Constitution that neither mentions nor hints at the subject. Is it in the Ninth Amendment’s stipulation of unenumerated rights, neither mentioned nor denied by other rights actually specified in the “living document”? Or is it in the Fourteenth Amendment’s “due process” clause or its guarantee of the “equal protection of the laws”? Or does it even matter?
One significant point about the Fourteenth Amendment that has gone largely overlooked in all the litigation over it is its very last sentence: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” Note not only what it says, but also what it does not say. It does not say, “The judicial branch shall have power to enforce, by imaginative interpretations, the provisions of this article.”
By its own admission, the Blackmun ruling for the Supreme Court in Roe would fall of its own weight if Congress were to declare, for the purposes of the Fourteenth Amendment, that preborn humans are persons under the law. The unborn would then be entitled to the “equal protection of the laws.”
For numerous times over the 45-plus years that the Roe decision has been in force, supposedly pro-life Republicans have been in the majority in Congress. So where is the pro-life legislation? A ban on partial-birth abortion is nearly worthless as a partial solution. We need to elect pro-life legislators who mean what they say about the right to life from the moment of conception to natural death. Now that would be a precedent, for the Congress that could go far to rein in the courts.