Since Justice Anthony Kennedy announced his retirement on June 27, media has been abuzz with speculation about what this means for abortion. Much of that speculation has been hyperbolic, and some erroneous, seemingly intended to create panic and to pressure political leaders into rash statements and hasty actions.
While Rhode Island Right to Life eagerly anticipates the day when Roe v Wade is overturned, so that legal protection can be restored for unborn children, we know the importance of remaining rooted in reality. Facts matter! And a sober assessment of relevant facts is critical in setting expectations and guiding action.
Recall that virtually every activist and pundit, on both sides of the abortion debate, believed that Reagan-appointed Justices Sandra Day O’Connor and Anthony Kennedy, along with Bush-appointed Justice David Souter, would vote to “overturn” Roe v Wade if given opportunity. These three stunned the nation in the 1992 Planned Parenthood v Casey decision, affirming the essential holding of Roe v Wade, that a “right to abortion” is protected under the Due Process Clause of the Fourteenth Amendment to the Constitution.
Many today likewise believe that Justice Neil Gorsuch, and Judge Brett Kavanaugh (if confirmed by the Senate), will join Chief Justice John Roberts, and Associate Justices Clarence Thomas and Samuel Alito, in voting to “overturn” Roe v. Wade if given an opportunity. While we hope this will be the case, history suggests the likelihood that things may not be that simple. Indeed, some credible court watchers even question whether Roberts would vote for a complete “overturn” of Roe v Wade.
And remember that the Supreme Court is not a legislative body. It does not propose laws. For Roe v Wade to be reconsidered, an appropriate case must be brought before the federal courts by a party with standing and make its way through a District Court and Circuit Court of Appeals before possibly, though possibly not, being accepted for hearing by the Supreme Court.
Finally, even if an appropriate case does eventually work its way through the federal courts, is accepted by the Supreme Court for hearing, and the five Justices believed to harbor “pro-life” sentiments (if Kavanaugh is confirmed) find no “right” to abortion in the Constitution… NOTHING would change with respect to the availability and regulation of abortion in Rhode Island!
Let that sink in. Nothing would change in Rhode Island! The legal status quo would remain as it has been for decades; abortion laws presently in force, and those not in force, would remain as they are, unless and until appropriate legal filings were duly made by a party with standing, overcome the inevitable legal challenges thereto, and decided by the courts.
While nothing would “automatically” change in Rhode Island if Roe v Wade were “overturned,” the General Assembly, subject to the Governor’s veto, would once more be empowered to craft laws regarding whether and how to regulate abortion providers, and the limits to the abortion license in Rhode Island.
It is plainly evident that the possibility of abortion being made illegal in Rhode Island yet remains as remote as it is speculative. Rhode Island Right to Life hopes this will happen, and works hard to make this happen, but we know it will not just “happen.” If it happens at all, numerous intervening elections will necessitate broad public support for the laws eventually enacted by the General Assembly, meaning that Rhode Island laws will change gradually, reflecting the fact that most Rhode Islanders are “somewhere in the middle” with respect to abortion rather than at either pole of the debate.
So why the present mad rush by abortion proponents? If their goal is to maintain the status quo, they need not do anything. But the truth is they are engaged in a cynical attempt to deceive the public into supporting an extreme agenda that goes beyond Roe v Wade; they seek to turn Rhode Island into an abortion sanctuary in perpetuity, even as knowledge of fetal development, advances in ultrasound technology, and a greater sense of compassion and solidarity lead more and more people to believe our society can do better. Rhode Islanders deserve honesty and truthfulness, not manipulation, from those who seek to represent them.
Barth E. Bracy serves as executive director of Rhode Island Right to Life.