Judge Napolitano Explains What Could Happen to Roe v. Wade If Kavanaugh Is Confirmed
Nearly one in four women in the United States will have an abortion by age 45, according to Guttmacher Institute researchers. And now with the nomination of Judge Brett Kavanaugh to succeed Justice Anthony Kennedy on the Supreme Court, some are questioning whether the Supreme Court will overturn Roe v. Wade.
Roe v. Wade was the landmark 1973 Supreme Court decision that said prohibiting abortions was unconstitutional due to the right to privacy under the due process clause of the 14th Amendment.
The clause recognized the right to privacy without political interference in personal medical decisions; “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law…”
Fox News’ Dr. Manny Alvarez, who is also a practicing OB-GYN in New Jersey, sat down with Judge Andrew Napolitano, Fox News' senior judicial analyst, to explain what could happen if Roe v. Wade is repealed.
"[Roe V Wade] is a weak premise even from the point of view of those who are in favor of abortion and it happened the way a lot of Supreme Court decisions happen, by compromise," Napolitano said.
Although a woman’s right to choose was protected by the Constitution, the court came up with a legal balancing test based on the trimester framework of pregnancy, he noted.
"The only way the court was able to get enough [votes] in favor of stopping the states from prohibiting abortion was to come up with this idea that we have trimesters," he said.
"In the first trimester the state has no interest in preserving the life of the fetus, in the second trimester the state has an interest in preserving only the health of the mother, in the third trimester the state has an interest in preserving the life of the fetus because it is presumed viable during that third trimester," Napolitano said, describing the balancing test set forth in Roe v. Wade.
The right to an abortion was upheld in the 1992 decision Planned Parenthood v. Casey, when the Supreme Court shifted away from the "trimester framework" established in Roe toward the "undue burden" test, which required courts to determine whether abortion restrictions placed an undue burden on the woman seeking the procedure.
While many states have passed laws banning third-trimester abortions, some of these attempts have been blocked by federal courts.
Meanwhile, seven states and the District of Columbia allow abortions without any gestational limit.
Two of these states – Alaska and New Jersey – passed laws banning partial-birth abortion, but federal courts have issued injunctions against these laws, stopping them from being enforced.
If Roe v. Wade was reversed, it would not automatically make abortion illegal across the country. The legality of abortion would be in the hands of the states, some of which already have laws in place that would restrict a woman’s right to choose.
“One of the criticisms of Roe v. Wade was that it was not a manifestation of what the people’s representatives wanted, it was a decision by five blackrobed life-tenured justices. If it goes to the states, in most states it would be decided by their representative, so if the representative of the people of Pennsylvania or Texas say as soon as Roe goes, no abortions, that’s the popular will,” Judge Napolitano said.
Some states already have certain restrictions when it comes to getting an abortion. For example, 17 states ban abortion at about 20 weeks post-fertilization based on the grounds that the fetus can feel pain at that point in gestation.
States like Mississippi, Louisiana, North Dakota and South Dakota also have so-called "trigger laws" in place, which would automatically ban abortion if Roe v. Wade is overturned.
Judge Napolitano said he does not see that happening, even if Kavanaugh is confirmed to the court by the Senate.
“Let’s say that Judge Kavanaugh becomes Justice Kavanaugh and we have six Catholics on the Supreme Court and we have five pro-life justices on the Supreme Court, I don’t believe that the Chief Justice [John G. Roberts Jr.], a practicing pro-life Roman Catholic, would vote to repeal Roe v. Wade, because he believes that would undermine the court’s credibility if something changed radically because of an election," said Napolitano.
He added that he expects more "gradual" abortion restrictions to be passed by states and upheld by the reconfigured Supreme Court.
"Instead of a decapitation, [it would be] death by a thousand cuts."
Watch the full discussion between Dr. Manny and Judge Napolitano above.