JURIST Guest Columnist Kermit Roosevelt of the University of Pennsylvania Law School discusses abortion rights in America …

In 1973, over 40 years ago now, the US Supreme Court entered the abortion fray in Roe v. Wade. Roe offered the nation the court’s view of the competing interests in the abortion dilemma, which it identified as the woman’s right to privacy and the state’s interest in potential life. It also provided a detailed constitutional framework to govern state regulation of abortion. Until the end of the first trimester, the court pronounced, the decision must be left “to the medical judgment of the pregnant woman’s attending physician.” After the first trimester, but before viability, states could regulate in order to protect maternal health. And after viability, states could regulate and even ban abortion in order to protect potential life, except when abortions were necessary to protect the “the life or health of the mother.” This framework, the court declared, was “consistent with the relative weights of the respective interests involved.”

And so it presumably was, in the court’s eyes. But the American people do not always acquiesce in judicial determinations of moral dilemmas, and Roe did not resolve the divisive issue of abortion. Overturning Roe became part of the Republican Party’s platform. Over the next 20 years, three successive Republican Presidents appointed seven justices to the US Supreme Court. With Planned Parenthood v. Casey, many thought that the vehicle to overturn Roe had arrived.

It had not. In Casey, three Republican appointees, Justices Anthony Kennedy, Sandra Day O’Connor and David Souter formed a surprising coalition to preserve what they called Roe’s “essential holding”—the idea that the Constitution provided special protection for a woman’s choice of abortion. While preserving that central holding, Casey changed the court’s approach in significant ways. Roe had erred, the Casey plurality wrote, in taking such an uncompromisingly pro-choice approach. States had legitimate interests in promoting life, and they were entitled to make their voices heard. States were free, Casey suggested, to make good-faith attempts to persuade women to choose childbirth over abortion. They could not, however, impose an “undue burden” on the choice—they could neither restrict it so much as to coerce, rather than persuade, nor impose regulations whose only purpose was to make obtaining abortions more difficult. With this compromise, the Casey plurality hoped, the divisive issue of abortion could finally be settled, as “the contending sides … accept[ed] a common mandate rooted in the Constitution.”

Once again, though, the court was disappointed. Casey’s call for compromise fell on deaf ears. And the undue burden test turned out to be far from an ideal way of accommodating competing interests. Roe’s rigid trimester framework might have erred by invalidating even good-faith attempts by states to persuade rather than coerce, but it was at least a test that courts could apply consistently. Different judges with different ideologies would tend to reach the same results. Not so with Casey’s gauzy generalities. The undue burden test essentially asked judges to distinguish between good-faith persuasion and the bad-faith imposition of pointless hurdles. But that is a line that is hard to draw objectively, and judges applying the undue burden test were inevitably influenced by their own ideology. Pro-choice judges were more likely to find that state regulations were bad-faith attempts to chip away at the abortion rights, while pro-life judges were more likely to find that they were good-faith efforts to improve women’s decision making.

This tendency found its most striking expression in two court decisions rendered within the span of seven years. In the late 1990s, the Nebraska legislature enacted a ban on what it called “partial birth abortion,” a particular abortion method that had become controversial. In Stenberg v. Carhart, in 2000, the court pronounced this law unconstitutional by a vote of 5 to 4. Its prohibition swept broadly enough to include other abortion procedures, wrote Justice Breyer for the majority. And in any case, the law lacked a constitutionally-required exception for abortions necessary to protect the life or health of the mother.

In 2003, the federal government enacted a similar law, the Partial-Birth Abortion Ban Act. Congress attempted to improve on the Nebraska law in some ways. They drafted with slightly greater precision and created a somewhat more impressive record. Still, the two laws were essentially indistinguishable, and every justice to consider the federal ban voted exactly as he or she had voted on the Nebraska act.

Yet the result, in the 2007 decision of Gonzales v. Carhart, was a 5-4 victory for the defenders of the law. What happened? The majority made some attempt to distinguish the earlier decision, but the real source of the change was obvious to everyone: Justice Alito had replaced O’Connor, and he was more sympathetic to state regulation than she was. Under the malleable undue burden test, the replacement of one justice made all the difference.

One possible future for abortion rights, then, is that the undue burden test will continue to be the law of the land—but a law that means strikingly different things depending on who sits on the Supreme Court. Presidential elections will loom large in the minds of abortion rights supporters and foes alike. Those elections, and the politicized and partisan court nominations that follow, will be one of the most significant battlegrounds for the issue of abortion rights.

It is not a prospect that either side should find inspiring. But those hoping for more from the Supreme Court are likely to be disappointed. The court has repeatedly proved itself unable to impose consensus from above, and it is unlikely that any decision it renders will do better at achieving that goal than Roe and Casey.

There is a possible way forward through Supreme Court decisions. If we look at history, it is possible to distinguish controversial decisions that have won acceptance—decisions like Brown v. Board of Education, Loving v. Virginia, US v. Virginia, and Lawrence v. Texas—from those that have not, like Lochner v. New York and Roe itself. The difference is that the decisions that have come to be accepted by the American people are based on equality, while those that remain controversial or have been rejected are based on liberty. If the court were able to write a persuasive equality-based abortion decision, it might set the debate on the same path as the debate over school segregation or interracial marriage.

There have certainly been calls for such a decision, both from law professors and from justices, notably Ruth Bader Ginsburg. But the shift from a liberty to an equality perspective is actually not something the court can achieve on its own. Such an opinion will be persuasive only if society comes to see the underlying issue as one of equality.

Such shifts in social perspective happen. They are how school segregation came to be understood as a blatant offense against equality rather than a hard question about freedom of association, how same-sex marriage came to be understood as a plea for equal treatment, not special rights. But they happen not because of courts but because of citizens, because Americans undertake the hard work of engaging with each other and changing opponents’ minds. Ultimately, if there is to be a resolution of the divisive abortion issue, it must come from the American people.

Kermit Roosevelt is a professor of law at the University of Pennsylvania Law School and the author of The Myth of Judicial Activism and the novel Allegiance.

Suggested citation: Kermit Roosevelt, The Future of Abortion Rights and Regulations, JURIST – Academic Commentary, Feb. 9, 2016, http://jurist.org/forum/2016/02/kermit-roosevelt-abortion-rights.php