On the Passing of Supreme Court Justice Robert Bork

Casey Mattox

12/28/2012 12:01:00 AM - 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.

Recent efforts by the more libertarian wing in the Republican Party have softened the national Republican position and the Democrat Party still retains platform support for some constitutional protection for abortion rights. If Justice Bork had not been confirmed and Roe remained, the Democrat Party might have shifted radically leftward, emboldened to oppose any abortion limits, effectively banishing pro-life Democrats from the party.

Conversely, the Republican Party might have become the near sole home of pro-lifers. Over time the nation might have become deeply divided over abortion, an issue that is not amenable to compromise. The deep abortion divides that we see today in only a handful of states might have been the national norm.

Justice Bork’s contentious nomination process might have been only the beginning. With the left emboldened by his defeat and yet Roe narrowly remaining good law, Supreme Court nominations might have become ever more hostile affairs. With abortion looming over every appointment, presidents would have been pressured to make decisions using that litmus test. Confirmation hearings might have become mere games – with posturing Senators engaged in demagoguery that would make Senator Kennedy’s treatment of Bork (and to a lesser extent Justice Edith Jones in 1990) look tame while nominees endeavored to avoid every question.

While the issue has not gone away, the end of abortion regulation in the Supreme Court job description has arguably produced a higher quality Supreme Court and a less contentious process.

Some estimate that if Roe had been upheld another 30 million may have been aborted nationally -- as opposed to the 10 million aborted in California, New York, and other states with more liberal abortion laws. Twenty million people, just now entering our workforce, would have been removed from our tax base.

Who would have performed all of those abortions? Would Planned Parenthood have become the nation’s primary abortion provider, even requiring all of its affiliates to provide abortions? Would federal taxpayers be forced to continue to provide Medicaid and other funding to Planned Parenthood? Or might abortion advocates have turned to challenging decades-old conscience laws in an effort to co-opt all medical professionals into meeting a constitutionally protected demand for abortions?

Two decades after Justice Bork voted to overturn Roe, Americans have become comfortable with abortion policies and most other social issues being decided at the state level by state voters and under state constitutions. It seems natural for these issues to be debated at this more local level instead of the national stage. The law and our political life seems the better for it. But Justice Bork’s passing reminds us that it did not have to be this way.