For Women’s Rights, It’s Not Enough for the Next Supreme Court Justice to Be Moderate: She Has to be a Fighter

The ever-changing political climate of American has shaped the journey of women’s reproductive rights through our legal system. From the moderate Republicanism of the 70s when Roe v. Wade was decided, to the neo-conservatism of the 80s and 90s, the court’s attitude towards women’s rights has shifted along side. Now, at a time of “us versus them” identity politics, and where a vacant SCOTUS seat could be filled by a presidential candidate who thinks a woman’s worth is in her sex appeal, it’s more important than ever to appoint someone who knows that “women” are included in the “us.”

For nearly 20 years since 1973’s Roe v. Wade and its companion case Doe. v. Bolton, the Supreme Court regularly struck down abortion statutes found to inhibit, restrict, or burden women seeking abortions with a regularity that would surprise modern women’s rights activists. Then-sitting justice Harry Blackmun called states’ constant meddling in abortions “interpositions” that other medical procedures seemed to have the fortune of escaping.

By the time Blackmun left the bench in 1994, the court had shifted its attitudes about who knows what’s best for women: once, it was women and their physicians; now, it’s the government. A state’s interest in protecting an unborn fetus matters more than a woman’s right to protect her own future, and states are free to interpose. And interpose, they do. In 2011 alone states enacted a record 1,100 anti-abortion provisions. The previous record was 34.

An interposition now being challenged in the Supreme Court in Whole Woman’s Health v. Hellerstedt is Texas’s HB 2. The 2013 bill forced dozens women’s clinics across the vast state to close by requiring  onerous, unnecessary, and expensive medical and facility changes. “It’s almost like the perfect controlled experiment as to the effect of the law, isn’t it?” Justice Kagan mused in oral arguments. “It’s like you put the law into effect, 12 clinics closed. You take the law out of effect, they reopen.” Plaintiffs contend that the requirements neither promote safety nor apply medically to the procedures at hand.

Had this case gone to trial 25 years ago, it would have been open and shut. But Hellerstedt went to trial in 2015, when states’ interests overrides a woman’s interest in protecting her future. 

The Roe/Doe decisions were during socially liberal “Rockefeller” Republicanism that reigned from the 40s through the 70s. Crucially, the idea that individual people and the collective minds of medical professionals know what’s best when it comes to medical practice ruled the day, and ruled the Supreme Court’s decision making when it came to reproductive health.

Liberal Republican Eisenhower and moderate Republican Nixon appointed nine Justices between them, seven of whom who judged Roe and Doe: William Brennan, Potter Stewart, Earl Warren, Warren Burger, Harry Blackmun, Lewis Powell, and William Rehnquist. Rehnquist was one of two Roe/Doe dissenters. (The other, Byron White, was a Democrat appointed by Kennedy.) Seven Justices ordered that states could not ban, restrict, or even regulate first-trimester (1-12 weeks) abortions because they are safe, medically sound procedures on nonviable fetuses; therefor a state has no reason whatsoever to intervene, either to protect a woman from a hazardous procure (it’s not) or protect a viable life (it is’t). States could only begin to restrict abortions after the third trimester, generally thought when the fetus attains viability (the ability to survive outside the womb). The final major case that assumed this precedent was 1983’s Akron v. Akron Center for Reproductive Health, Inc.: “a pregnant woman is permitted to have an abortion free of interference by the state,” and crucially,  a state could not “adopt one theory of when life begins to justify its regulation of abortions.”

Along came the death of moderate Republicanism and shift to the neo-conservationism of the 80s and early 90s. Four of the eleven core neoconservative principles are freedom, faith, the sanctity of human life, and limited government: in practice, the freedom of religiously motivated state legislatures to control women’s bodies without interference from the federal government.

Ronald Reagan appointed the first female justice Sandra Day O’Connor to the Court in 1981, replacing Potter Stewart. In her dissenting Akron opinion, O’Conner opined that the Supreme Court should not act as the country’s unofficial medical board, yet wrote in her non-medical opinion fetal viability is “flexible” and becoming “increasingly earlier” thanks to medical technology. Therefor the point at which a state has a compelling interest in “promoting health” should not be based on a trimester framework, but whenever viability could possibly exist.

Then in 1989 with moderates Burger, Stewart, Powell, replaced by three more Reagan appointees, the court decided in Webster v. Reproductive Health Services that Missouri could constitutionally require a viability test before an abortion because a woman’s liberty is “subject to restriction by any laws which would permissibly further a rational state interest such as protecting potential life.” In a feat of mental gymnastics, the majority found that Missouri’s law was “concerned with promoting the State’s interest in potential human life, rather than in maternal health,” and if the fetus is found to be viable, the state no longer has to concern itself with women’s health, but promote it’s own interest.

In a moment of prescience, Blackmun wrote that the Webster decision “implicitly invites every state legislature to enact more and more restrictive abortion regulations in order to provoke more and more test cases, in the hope that, sometime down the line, the Court will return the law of procreative freedom to the severe limitations that generally prevailed in this country before January 22, 1973.” O’Conner thought he was mistaken: the “suggestion that legislative bodies, in a Nation where more than half of our population is women, will treat our decision today as an invitation to enact abortion regulation reminiscent of the dark ages not only misreads our views but does scant justice to those who serve in such bodies and the people who elect them.”

O’Conner ignored the very political shift happening around her that would ultimately prove Blackmun to be correct.

When the time George Bush appointed Thurgood Marshall in 1991, the last of the moderate Justices appointed by Eisenhower and Nixon was gone. Only one year later, the now majority neo-conservative court ruled in Planned Parenthood of Southeastern Pennsylvania v. Casey that a “woman’s liberty is not so unlimited..that…the State cannot show its concern for the life of the unborn, and…the State’s interest in life has sufficient force so that the right of the woman to terminate the pregnancy can be restricted;” and that anti-abortion statute is unconstitutional only if it poses an “undue burden” with “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”

Put together: because women don’t have “unlimited liberty” over their own bodies, a state could ban abortions as unbelievably early as 12 weeks; and could heavily regulate legal abortions so long as enough women are not “unduly burdened” by the regulations.

Without enough liberal support, it is likely that HB 2 will be found constitutional. Should it be so ordered, the ruling could open the door for states find ways to ultimately make abortion inaccessible in the name of “protecting” health and life. Yet such measures have likely prevented many Texas women from finding affordable contraception, leading to, you guessed it, more unplanned pregnancies, therefor more abortions, which are now more likely to be self induced, a horrendously unsafe practice.

But there is hope, even if this were the case: the vacancy left by Scalia could open the door to putting the rights of women back into the hands of whom they belong: women. Just as Akron was overturned in Casey, Casey (or Herllerstedt) could be overturned in course. Filling the seat with a moderate Republican like Garland won’t be good enough, as it’s likely he would continue with precedent. We need a judge on the bench who, in this time of “us versus them” identity politics, knows “women” are included in the “us.” We need a judge who will fight for women, not stand idly by as our rights are squeezed from our bodies by the cold hands of ultra-conservative, mall-dominated legislatures. We cannot let our fates be anyone’s but our own.

Otherwise, as wrote Blackmun in 1989, the signs that women will lose total control over their reproductive futures “are evident and very ominous, and a chill wind blows.”




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