By Jessica Sutton.
Justice Ruth Bader-Ginsburg, liberal stalwart of the United States Supreme Court, passed away a month ago. This was a terrible loss in more ways than one. Not only have we lost a champion for gender equality, but Justice Ginsburg’s absence from the Supreme Court bench leaves a dangerous void. Despite the United States still struggling with a deadly resurgence of COVID-19, the current administration has prioritised rushing through the confirmation of a new Supreme Court Justice.
President Trump’s nominee is Justice Amy Coney Barrett, who has caused a stir due to her conservative views on abortion, same-sex marriage, and the Affordable Care Act (Obamacare). This week the United States Senate voted to advance Justice Barrett towards final confirmation as a Supreme Court Justice. This change would disrupt the fine ideological balance of the Supreme Court, putting contentious decisions such as Roe v Wade, which guarantees the right to abortion, at risk.
Why is Roe v Wade so important?
Roe v Wade is a famous United States Supreme Court case that ruled in favour of abortion rights. Jane Roe was the pseudonym of the complainant who was seeking an abortion. Jane Roe’s attempts to get an abortion in Texas were fruitless, as abortion was only permitted in the state when the mother’s life was at risk. Henry Wade was the District Attorney for Dallas County, defending the Texas abortion laws.
Roe v Wade succeeded on the basis that the right to privacy encompasses a woman’s right to choose whether to continue with or terminate a pregnancy. This privacy right would be balanced with the interests of governments to protect the health of the mother and the foetus. The Court decided that no restrictions could be placed on abortion in the first trimester, while second-trimester abortions could be restricted if they were justifiable and “narrowly tailored”. The Texas restrictions were essentially a total prohibition based on the idea that life began at conception. This law was ruled to be unconstitutional and struck down.
The argument in Roe v Wade disappointed fierce advocates such as Justice Ginsburg, as it shoehorned the right to abortion into a wider right to privacy. Justice Ginsburg would have preferred a much simpler analysis: abortion should be legal because restricting it exacerbated gender inequality. Roe v Wade, and subsequent abortion cases, can also be criticised as they do not recognise that trans men and non-binary people should be included in discussions about abortion. Nevertheless, Roe v Wade seemed to at least settle the question of female bodily autonomy.
A worrying development was the case of Planned Parenthood v Casey. Casey came dangerously close to overturning Roe v Wade. The core of Roe was upheld, but the rights were limited. Under Roe, restrictions on first term abortion were unconstitutional. Under Casey, abortion restrictions are only unconstitutional if they amount to a “substantial obstacle in the path of a woman seeking an abortion”. This has become known as the “undue burden” standard.
A wave of reactionary laws targeting abortion has spread across the United States in the last few years. Laws have involved restrictions on abortion after certain periods, prohibition of certain methods of abortion and limitations on the justifiable reasons for abortions. Overall, the rights of pregnant people have been significantly eroded since Roe v Wade.
Amy Coney Barrett and Abortion
Justice Barrett was averse to answering questions about her beliefs in her confirmation hearing, but her track record indicates that she could vote to overturn Roe v Wade should the opportunity arise. She clerked for Justice Antonin Scalia, a largely conservative justice who criticised Roe v Wade as “judicial activism”. She has previously written that abortion is “always immoral”. She signed a letter published by an anti-abortion organisation which described Roe v Wade as “barbaric”, and opposed “abortion on demand”.
She refused to confirm whether she would follow Roe v Wade in her confirmation hearing, whereas she said of other cases such as Lawrence v Texas that she “will faithfully follow” the precedent. She even refused to answer whether the Constitution would allow the death penalty to be imposed on women that get abortions . If Justice Barrett is confirmed and Roe v Wade is revisited in the Supreme Court, Justice Barrett’s vote against the decision could tip the balance.
What can be done?
Is “packing” the Supreme Court the answer? I say not, and Ruth Bader-Ginsburg would have agreed with me. Packing the Supreme Court involves increasing the number of Supreme Court justices. This would allow those in power, whether democrats or republicans, to pack the court with their preferred justices. This is the surest path, according to Justice Ginsburg, to rendering the court partisan and illegitimate: “it would be that – one side saying, ‘when we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to’”. Franklin Roosevelt’s failed attempt to pack the Supreme Court at the height of his popularity, indicates that this issue is politically problematic and would provoke public backlash.
Perhaps, rather than packing the Supreme Court, the very process of appointing United States justices and regulating their terms should be subject to more robust national debate. As a New Zealand comparison, our judges are appointed apolitically by constitutional convention. The Governor-General appoints New Zealand judges on the advice of the Attorney-General, without reference to political considerations. Judges retire at the age of 70. Whether these restrictions would ever be compatible with the constitutional framework of the United States is unlikely. Of course, another question is whether the fight for reproductive rights should be fought in the courts at all. Strong legislation may be a more appropriate and effective answer.
In the meantime, Justice Barrett’s nomination is being strongly opposed by people dedicated to protecting abortion rights. Despite their efforts, Justice Barrett may soon be confirmed as a Supreme Court Justice. As Judges in the Supreme Court serve until they die, resign, retire, or are removed, final confirmation of Justice Barrett could spell a conservative Supreme Court for many years to come. Pregnant people in the United States are on the precipice of losing control over their bodies, and consequently, the trajectory and success of their lives.
 Senior Courts Act 2016, s 133.