Casey Mattox

What might have been? If Robert Bork had been confirmed, perhaps this column would have appeared in this space.

Supreme Court Justice Robert Bork passed away on Dec. 19 at the age of 84. President Huckabee is expected to announce his nomination to replace Justice Bork in January. Bork was a key part of the Supreme Court’s conservative majority for over a quarter of a century, known primarily for his opinions limiting the federal government to its enumerated powers.

Yet perhaps his most notable contribution to the law is his vote in Planned Parenthood v. Casey, wherein he joined Chief Justice Rehnquist’s opinion overturning Roe v. Wade and ending America’s 20 year experiment with elevating abortion to a federal constitutional right.

For twenty years now abortion battles have largely played out in state legislatures and courts, and it’s easy to forget just how contentious the abortion issue was becoming on a national level before Casey.

While abortion rights are protected under many state constitutions today, abortions are almost entirely outlawed in much of the south and the plains states. Polls consistently show that Americans prefer this state-level approach to the one-size-fits-the-nation approach of the Roe era.

What if there were no “Justice Bork’s America?” What would our nation look like if Senator Kennedy had succeeded in derailing Justice Bork’s nomination in 1987? With all the caveats applicable to any attempt to reimagine history, here are some thoughts on what America might be like if Justice Bork had not been confirmed in 1987 and Roe v. Wade remained good law today.

The conventional wisdom at the time of Casey was that the pro-life movement might die out if Roe were not overturned. I think this underestimates the conviction of pro-lifers. Of course, I say this after watching state level pro-life organizations (countered by still predominantly national abortion rights organizations) have success in many states. But even if Roe were still the law of the land, I believe that the pro-life movement would have remained active today, albeit focused more on national elections and federal courts instead of the state courts and candidates where abortion battles have raged for two decades.

The end of abortion as a national political issue stopped the trend toward a strict split between the national Republican and Democrat parties on abortion. While candidate positions on abortion remains critical in some states, the abortion question, like the death penalty, rarely comes up today in presidential elections. No abortion questions were asked in the most recent presidential debates.

Casey Mattox

Casey Mattox is senior counsel with Alliance Defending Freedom