The announcement last week that Supreme Court Justice Anthony Kennedy will retire has set off a wave of emotions. Emotions that are at a fever pitch on both sides of the abortion issue.
For one side, in particular, I wonder why they continue to fight battles in a war they have already won, could it be that they can’t see the forest for the trees. Don’t they realize they have won the war?
The focus of the emotion set off last week by Justice Kennedy’s retirement is the fate of the infamous 1973 Roe v Wade Supreme Court decision, that affirmed abortion laws in the United States. Pro-choice advocates are highly stressed about the possibility that Justice Kennedy’s replacement will be the 5th vote to overturn Roe v Wade. Pro-life advocates are jumping for joy over the same possibility, meaning their dream of an abortion ban could become a reality.
Pro-choice advocates stress levels are so high because when asked about the prospect of Roe v Wade being overturned, President Trump said at the final presidential debate in October 2016, “If we put another two or perhaps three justices on, that’s really what’s going to be, that’s what will happen.” “And that will happen automatically in my opinion, because I am putting pro-life justices on the court.” With Republicans in control of the Senate, whoever President Trump chooses will likely be confirmed as easily as Justice Neil Gorsuch was last year.
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Pro-choice supporters, like Nancy Northup of the Center for Reproductive Rights, called Justice Kennedy’s retirement devastating news. “He has been a crucial vote in landmark reproductive rights cases,” she said. Helene Krasnoff, vice president of public policy, litigation, and law at Planned Parenthood Federation of America says, “President Trump has been making good on his threat to stack the courts with those who are opposed to safe, legal abortion, and we can only expect that he’ll nominate another extreme opponent.”
But there are 2 factors that should give Pro-choice advocates some hope that not all is lost:
1) Stare Decisis
Stare Decisis is a doctrine or policy of following rules or principles laid down in previous judicial decisions unless they contravene the ordinary principles of justice. An opinion written jointly by Supreme Court Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter, examined at length the judicial doctrine called stare decisis, a Latin phrase that means “the decision stands.” In the realm of constitutional law, the Supreme Court Justice generally asserts that stare decisis or respect for precedent is an important value, but not a definitive one. Respect for precedent is an important part of maintaining doctrinal consistency and advancing the rule of law, they maintain; at the same time, if they believe that a constitutional precedent is or has become erroneous, they will feel less of an obligation to follow it.
To help decide when to reaffirm a precedent and when to overrule it, the Justices collected four factors from other cases and past practices. They said respect for precedent should be guided by whether a constitutional rule has proven to be unworkable; whether society has built up reliance on the rule; whether legal doctrines have changed so that a rule has become obsolete; and whether facts have changed so much that a rule has become insignificant or unsupported.
After consideration of these 4 factors the 3 Justices concluded: “Within the bounds of normal stare decisis analysis, then, and subject to the considerations on which it customarily turns, the stronger argument is for affirming Roe’s central holding, with whatever degree of personal reluctance any of us may have, not for overruling it.” Justice Souter is the only 1 of the 3 still sitting on the Supreme Court, so Pro-choice advocates have to hope the legal logic of the 3 convinces 4 sitting Justice’s to join Justice Souter in not overturning Roe.
2) Citizen opinion
Abortion opinion polls say Roe should not be overturned. A Gallop poll of 1,024 U.S. adults ages 18 and older, with a margin of error, was plus of minus 4 percentage points, found that 60 percent of Americans believe abortion generally should be legal during the first three months of pregnancy, known as the first trimester (90 days). According to the poll men and women have similar support for abortion rights, with men more supportive of abortion in later stages of pregnancy; 31 percent said it should be legal in the second trimester compared to 26 percent of women.
Gallup asked Americans about their views on abortion including rape, incest, and when the life of the mother is in danger. A majority of respondents, 83 percent, said abortion should be legal in the first three months to protect the woman’s life; that number fell to 75 percent in the third trimester. More than three-quarters (77 percent) support legal abortion in the first trimester in cases of rape and incest, though that fell to just over half (52 percent) by the third. The poll also asked about support for abortion rights in the case of a prenatal Down syndrome diagnosis, 49 percent said they support abortion rights during the first trimester and 29 percent in the third trimester.
The Pew Research Center says that their 2017 poll shows public support for legal abortion remains as high as it has been in two decades of polling. Currently, 57% say abortion should be legal in all or most cases, while 40% say it should be illegal in all or most cases. It’s clear that a strong majority of Americans are against overturning Roe V Wade. If Pro-choice advocates can corral and concentrate the collective force of this majority on the Republican Senate, maybe it will force a no vote on any Judge who would overturn Roe.
As for the Pro-lifers who are gearing up for another battle by insisting on an overturn Roe v Wade litmus test on Justice Kennedy’s replacement, WHY? Pro-lifers have won the war. The abortion rate in America fell to its lowest level since 1973 when Roe v. Wade answered the question is abortion legal in the U.S., a new report finds. The report by the Guttmacher Institute, a research group that supports legalized abortion and whose research numbers are also sighted by conservative group Focus on the Family, puts the rate at 14.6 abortions per 1,000 women of childbearing age (ages 15-44) in 2014. That’s the lowest recorded rate since the Roe decision in 1973. The abortion rate has been declining for decades — down from a peak of 29.3 in 1980 and 1981.
The report also found that in 2013, the total number of abortions nationwide fell below 1 million for the first time since the mid-1970s. In 2014 — the most recent year with data available — the number fell a bit more, to 926,200. The overall number had peaked at more than 1.6 million abortions in 1990, according to Guttmacher.
Pro-lifers successful campaigns across America to get a number of states to pass laws that mandate abortion restrictions, have no doubt played a role in decreasing the number of abortions. But the larger impact comes from Pro-lifers successfully changing the attitudes about abortion ethics. In 1973 when the Roe v Wade ruling came down, America was in the aftermath of the free love period of the 1960’s and abortions were viewed as just another form of birth control to be liberally used on a whim.
Pro-lifers 40-year campaign to overturn Roe has had the effect of changing the lax abortion views that surrounded the abortion debate. It’s no longer something that Americans approach like it’s just some normal outpatient procedure. Abortion now is something that is contemplated with great discernment. It’s no longer the first option for unexpected pregnancies, it’s now the last option.
Center for Disease Control abortion statistics reflect the change:
The conflicting data of continued and rising support for the abortion option but the decreasing use of the actual abortion procedure, has given Pro-lifers the wrong conclusion that if they just keep fighting the battle they will win not realizing they have already won the war. The decreasing use of the abortion option is proof that Pro-lifers have won the war over the sanctity of life, now most people feel that abortion is the last, least desirable option one can turn to. Pro-lifers have won the war but will continue to always lose the battle of people having an abortion option.
Although most Americans would not personally choose the abortion option, most Americans feel the option should be available for them and those who would choose it.
This is the war victory Pro-lifers should accept. It’s a scenario that the Christian religious right should recognize, the state of free will. According to Christian theology, God offers man the free will choice to follow or not follow his commandments. Human behavior has taught us that humans are more likely to adhere to beliefs and practices that they freely choose, as opposed to something they are forced to adhere to. As America learned in the 1920’s with alcohol prohibition, you can’t pass laws to dictate moral behavior.
The Pro-life Movement should stop its abortion battles and accept their war victory over the Abortion Movement. Pro-lifers should depend on the rightness of their cause, not a legal ruling or a law to convince people not to use the abortion option. Just as God relies on the rightness of his commandments to convince us to follow them, not his almighty power to force us to follow them.
Allowing free will instead of insisting that President Trump and Senate Republicans apply an overturn Roe v Wade litmus test on Justice Kennedy’s replacement, prevents igniting deeply partisan emotional division in America that would only create a brutal political fight to the death battle, over an issue that’s already settled by free will. Most would, do, and will personally choose not to use the abortion option, but most would, do, and will always choose to have the option available for use if needed! Republicans and the religious right have won the war on abortion, why continue to fight a battle that inflicts needless pain, division, and conflict in America.🔷
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(This piece was originally published on Isaac Newton Farris Jr.’s blog.)