What Will SCOTUS Do?
Given the important abortion case before the US Supreme Court (SCOTUS) this week, I thought I’d make some comments about the abortion issue. I’ll make the bold statement that SCOTUS doesn’t actually rule to stop abortion. SCOTUS will, however, rule on the constitutionality of regulating abortion by analyzing the right to privacy under the Due Process clause of the US Constitution. In Roe v. Wade SCOTUS determined that the right to privacy under the Due Process clause (of the 14th Amendment) prevented the regulation of abortion by the states prior to viability of a fetus. SCOTUS recognized a right to privacy in terminating a pregnancy that not previously recognized by the Court. The impact was to invalidate any state or federal law that interfered with a woman’s right to privacy to have an abortion. This set into motion the great abortion divide in which both sides staked positions and resulted in 48 years of court challenges to define Roe v. Wade.
The clash between conservative and liberal isn’t necessarily about being pro- or anti-abortion. The conservatives generally believe the constitutional right to privacy is very limited and does not allow for a judicial determination on abortion. It is possible that a conservative Judge favors abortion, but philosophically does not find the right to an abortion in the Constitution. The conservative majority on SCOTUS will control the vote on the contours of the right to privacy in the Constitution. They may or may not pull back on Roe v. Wade. I’m not so sure that all the conservative Justices are ready to find no right to privacy that would change the constitutional architecture of the right to an abortion. But it is certainly possible.
What is at stake is a State’s right to regulate abortion. In a strange way, another conservative principle is state’s rights and the ability of a State to determine how social issues should be regulated. If SCOTUS finds no right to privacy for abortion, it will allow each State to decide its own policy on abortion. Some will allow it and some will not. This explains why I started by saying that SCOTUS doesn’t rule to stop abortion.
My point in the main is this — it doesn’t really matter what the individual Justice thinks about abortion, but it does matter how the Justice views the right to privacy. This isn’t just about abortion, it is about the contours of the Constitution. The implications are much more than just abortion. I predict the decision will be released the last week of June, just before the end of the term. I simply cannot predict if abortion will remain protected under the Constitution. I think it is 50-50. I’m watching with great interest.
Charles E. Hervas is the managing partner at Hervas, Condon, & Bersani, P. C.
Photo by Adam Szuscik on Unsplash