Brett Kavanaugh, the Supreme Court, and Roe v. Wade

With the hearings on Judge Brett Kavanaugh’s nomination to the Supreme Court starting,¹ one of the questions will be about women’s right to choose/abortion.  Will a Justice Brett Kavanaugh vote to take away a woman’s right to choose by overturning Roe v. Wade?  While Judge Kavanaugh told Senator Susan Collins that Roe v. Wade was settled law, settled law can be overturned. 

What people are missing, however, in talking about whether the Supreme Court might overturn Roe v. Wade, is that overturning Roe v. Wade is not going to take away a woman’s right to choose.  The Equal Rights Amendment was never adopted, but over the last 30+ years all, or at least almost all, of what the Equal Rights Amendment was supposed to accomplish has happened anyway.  It has been done by laws, regulations, and the general agreement of society.  Women are heads of Fortune 500 companies.  Female soldiers are going into combat as members of our military.  Women are as equal today as they would have been if the Equal Rights Amendment had been adopted 35 years ago.

And, I would argue, this has happened with less controversy and rancor than if the ERA had been adopted.  Because, instead of courts trying to apply the ERA in the black-and-white manner that is all a court can do, legislatures and people have progressed the cause of equal rights with compromise and flexibility.  A law here; a regulation there.  We have moved as society has progressed.  And we have pretty much gotten to where we would have been with the ERA. 

The same thing would happen with abortion if Roe v. Wade is overturned.  What people don’t understand in the debate over a woman’s right to choose is that we are not evenly divided between those who support a woman’s right to choose and those who oppose aobrtion.  Actually, views on abortion are divided among four groups: (i) those who oppose a woman’s right to choose under virtually any circumstances; (ii) those who want abortion available virtually without restriction; (iii) those who would allow it in some situations; and (iv) those who allow it in many circumstances. 

With the courts making the decisions about a woman’s right to choose, the fight has mostly been between those in group (i) and those in group (ii); i.e., between those with the more extreme views.  If we let our legislatures and people decide, which is what would happen if Roe v. Wade were overturned, what you would relatively quickly find is that, instead of the debate being between groups (i) and (ii), it would be between and among those in groups (iii) and (iv).  Instead of the argument being between those who absolutely oppose abortion and those who absolutely approve it, the argument would be between those in the middle, those who support a woman’s right to choose, but with some restrictions.  The discussion would be over what the restrictions should be, not whether the right should exist.

The result would be that women would still have the right to choose to have an abortion.  It might be somewhat more limited than it is now, as it is in countries Europe.²  Abortions at 24 weeks might not be available on demand.  Maybe the time limit would be 18 weeks or 20 weeks.  Women under sixteen or eighteen might need to get parental consent for an abortion.  I don’t know what the exact age would be, but that’s the point.  The rules would be set by the legislature, not the courts.  They would be decided by those in the middle, not argued over by those on the extremes.  But the right to choose would remain – and there would be less controversy over it and probably more support for it.

This is not to say that Roe v. Wade should be overturned or that a Justice Kavanaugh would vote to do so.  It is merely to say that the right of a woman to choose would survive an overturning of Roe v. Wade and might even gain more support if it were.
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¹ An interesting point with respect to complaints about the speed with which Senator Mitch McConnell is trying to get Judge Kavanaugh’s nomination considered:  Brett Kavanaugh was initially nominated by George W. Bush to a position on United States Court of Appeals for the District of Columbia on July 25, 2003.  He was confirmed on May 26, 2006.
² See, inter alia, here and here.