Did you notice? During the contentious discussions surrounding the confirmation of Judge Brett Kavanaugh to be an associate justice of the Supreme Court, an enormous elephant was standing in the middle of the room.
Sexual assault and temperament took the headlines, but the real question for very many people was how Justice Kavanaugh, if confirmed and seated, would rule if legal abortion came before the Supreme Court.
Since Jan. 22, 1973, by Supreme Court definition, deciding to have an abortion is legal in this country. The case was Roe v. Wade. The court ruled 7-2. All of the justices now are deceased. Opposing the ruling were William Rehnquist, appointed by Republican Richard M. Nixon, and Byron M. White, Democrat John F. Kennedy’s nominee.
The seven justices in favor of abortion on demand were Chief Justice Warren E. Burger, Harry Blackmun, William J. Brennan, William O. Douglas, Thurgood Marshall, Lewis E. Powell and Potter Stewart. Republican presidents appointed Burger, Blackmun, Brennan, Powell and Stewart. Douglas and Marshall were nominated by Democrats.
Justice Brennan was the only Catholic justice, a practicing Catholic.
The situation almost was reversed in 1992 when the court heard a challenge to legalized abortion. Our Sunday Visitor was one of many newspapers to predict that the end of legal abortion on demand was momentary.
Then Associate Justice Anthony M. Kennedy, also a practicing Catholic, a conservative presumed to have been a Republican, and President Ronald Reagan’s nominee to the court, broke the tie in favor of legal abortion. Joining him were Justices Sandra Day O’Connor, David Souter and John Paul Stevens, all regarded as “conservatives,” and all nominated by Republican presidents.
This is the point. Using previous political leanings or expressed legal philosophy to assume how any justice will decide is risky. For example, numerous suits insisting that racial segregation was unconstitutional came before the court 60 years ago. Everyone expected that Justice Hugo L. Black, who had politically championed segregation in times past — even defending the lynching of blacks, and who had belonged to the Ku Klux Klan — would see racial segregation as permissible. He voted against segregation every time.
If legal abortion comes back to the Supreme Court with Justice Kavanaugh and an assumed conservative majority now on the bench, what might happen?
Roe v. Wade might be set aside. Would abortion therefore be illegal everywhere in this country? Maybe, if the specifics of the case were in certain terms, the court might decide precisely or by implication that life begins at conception.
Or, depending on the particulars of cases, the court might return things to where they were before Roe was decided. What was that? Abortion was not unlawful everywhere. It depended on the state. Several states had no legal restrictions. Some states outlawed abortion altogether. Others allowed qualifications.
As a young priest, before Roe, I was shocked when a Catholic woman, very much involved in Church organizations, told me without shame that she had taken her unmarried, teenage daughter to California for an abortion. Why go to California? Abortion was legal there, but not so in Tennessee where I was, and where the woman and her daughter were.
I also remember the brisk debate in the Tennessee legislature back then about legalizing abortion.
Any future decision might well address a narrow concern, such as the right of parents to be informed or the medical credentials of a physician who performs abortions. Some cases are in the works, it is said.
This much is certain, if abortion becomes an issue to be revisited by the Supreme Court, reactions on both sides will be intense. Furious arguments will rage back and forth, probably behind the closed doors of the court itself. Cases well may be complicated.
Whatever happens, Catholics especially must teach the young that abortion is gravely immoral. We must make this clear to all.
Msgr. Owen Campion is OSV’s chaplain.