What's at Stake: Q & A

What kind of restrictions on abortion has the Supreme Court allowed?

By 1992, a majority of the Court no longer supported using the original test in Roe of "strict scrutiny" to weigh the validity of an abortion restriction, and adopted a lesser standard of "undue burden" promoted since 1983 by Justice Sandra Day O'Connor. By 2005, the Court had permitted several restrictions on Roe. Parental consent or notification laws now apply in more than half the states. Minors who do not want to tell their parents or seek the permission of a judge are forced to travel long distances to retain their privacy when having an abortion. Worse, some minors resort to dangerous illegal abortions. States are also allowed to require waiting periods between a mandatory visit to a counselor and actually having an abortion, and may require counseling that is, in fact, intended to dissuade a woman from abortion. The Court also allowed the federal government to promote childbearing above abortion by refusing to fund abortions for poor women on the same basis as other medical care. Over 300 state criminal abortion restrictions are in effect, none of which would have been constitutional under the original Roe decision.

Why are the federal appeals courts so important to the survival of Roe?

The federal appeals courts, or circuit courts of appeal, are organized by region and have the final say in their respective regions unless their decisions are reviewed and overturned by the Supreme Court. The Supreme Court reviews very few cases each year, so it is likely that some appeals (circuit) court abortion decisions will be the last word, at least for the states covered by the circuit court making the decision. For example, in February 2001, the Supreme Court refused to hear an appeal of a decision by the conservative 4th Circuit Court of Appeals in Richmond, VA, upholding a South Carolina regulation that imposes a variety of restrictions on first trimester abortions (Greenville Women's Clinic v. Bryant). The restrictions range from permitting the state to copy and remove patient records to requiring testing for sexually transmitted diseases and mandating structural and administrative requirements for abortion providers that are not required of other health care facilities. Because the Supreme Court refused to hear this case, these provisions are now legal in South Carolina, and could also be enacted in the other states covered by the 4th Circuit -- Maryland, Virginia, West Virginia, and North Carolina -- although the case is being appealed on other grounds.

What would happen if Roe were overturned?

Without Roe, there would be no protection for a woman's right to choose. The availability of abortion could revert to pre-Roe status, with abortion available in only three states -- only one of which (New York) is in the contiguous 48 states. Or if a "right to life" interpretation prevailed, all abortions could be outlawed. Many observers believe an outright overturning of Roe is unlikely. Instead, a conservative Court might continue to allow states to enact more and more restrictions, eliminating the right to an abortion based on truly private decision-making.

How can NCJW members and others affect the nominations process?

When someone is nominated by the President to become a judge, the public can have an impact by advocating to senators for or against the confirmation of the nominee, just as the public has a role in influencing Congress on the passage of a law. Testifying at Senate Judiciary Committee hearings, contacting senators, organizing coalitions with like-minded groups, conducting petition drives and phone banks, holding press conferences and rallies -- all are legitimate means of expressing support or opposition to a nominee. Public opposition has had a significant impact on the nominating process in the past. Two of President Nixon's Supreme Court nominees were defeated in the Senate; President Reagan's nomination of Robert Bork was also defeated; and the nomination of Clarence Thomas by President George H.W. Bush was nearly defeated -- all because of the efforts of advocates and ordinary Americans who found their views too extreme.

How does this issue relate to freedom of religion?

Religious freedom speaks to the right of individuals to be respected as moral decision-makers, able to make choices based on their religious beliefs and traditions as well as their consciences. The debate surrounding reproductive choice is unmistakably tied to this freedom. Views on reproductive issues vary between religions and even within religions, depending on a woman's circumstances. Imposing a single belief on all of us compromises our right to abide by our own religious teachings on this important personal issue.

Isn't NCJW proposing a single-issue "litmus test" for judges?

No. Other than professional credentials, moral character, and judicial temperament, the basic qualification for a judge is that she or he uphold our constitutional rights, including the right to privacy, reproductive freedom, and the progress that has been made on civil rights and individual liberties. Judges and justices serve for life, and a nominee's position on basic constitutional principles will affect millions of people far into the future. Ideology has historically played a role in the confirmation of judges. In fact, George Washington's first nominee for Chief Justice of the Supreme Court, John Rutledge, was rejected by the Senate based on his views.

Note: Some information based on Center for Reproductive Law and Policy report: Privacy Law and the U.S. Supreme Court: Before and After Roe v. Wade; Issued January 7, 1998; Updated June 2000