Tipping the Judicial Scales on Choice

In the wake of Brett Kavanaugh’s confirmation to the Supreme Court, a coalition of Democrats and abortion-rights groups have grown increasingly concerned about the future of women’s right to reproductive health in America.

Although a woman’s constitutional right to an abortion was established in the landmark Roe v. Wade ruling in 1973, abortion has remained one of the most polarizing and divisive issues in the American political landscape. Since 1973, individual states have enacted 1,142 restrictions on abortion, according to the Guttmacher Institute. These restrictions have made the path to getting an abortion difficult or impossible for some women, especially in deep-red states like Oklahoma.

Candace Blalock, who has served as chief judge, district judge and assistant district attorney in Oklahoma, reflected on how statewide abortion restrictions target economically disadvantaged women. “They obstruct any way at all for poor women to have a choice. It’s very difficult for someone that has no money, maybe several children already, to be in that situation,” Blalock said. “Rich women can fly to Switzerland if they want to and middle class women can find other means, but for poor women they really don’t have a choice.”

Although abortion rates in Oklahoma have declined in recent years, the state legislature has continued to propose restrictive measures on reproductive services. Since taking office in 2011, Governor Mary Fallin has signed 19 restrictions on access to women’s reproductive health in the state.

Eight of these 19 measures have been challenged by The Center for Reproductive Rights, an organization whose mission is to use “the power of law to advance reproductive rights as fundamental human rights around the world.” The center won all eight cases they argued before The Oklahoma Supreme Court.

Martha Hardwick Blake, a retired Oklahoma lawyer who has worked extensively with The Center for Reproductive Rights, helped fight against 15 anti-choice legislation measures during her career. Hardwick believes that Kavanaugh’s confirmation is a threat to women across the country. “There’s no question about it. The first opportunity he [Kavanaugh] has to vote against it, he will vote Roe down,” Blake said. “The back alley abortions will come back, because women are not going to quit getting abortions, but they’re not going to be safe or legal.”

While Kavanaugh has attempted to ease public concerns about his beliefs on abortion by saying he “respects precedent,” Blake’s concerns are far from unfounded. Kavanaugh’s legal history indicates that his definition of abortion “precedent” is worrisome, as indicated in his dissent in the 2017 case Garza v. Hargan.

In this case, an undocumented 17-year-old girl was arrested while crossing the border between the United States and Mexico and sent to a private Texas detention center. While living at the detention center, the girl learned she was eight weeks pregnant and wanted an abortion. She had already fulfilled the state requirement of being “mature and sufficiently well informed to make the decision to have an abortion” by a Texas judge. She also had money for transportation and to pay for the procedure. However, the Trump administration would not allow the girl to leave the detention center to attend her appointment. The government was then sued by ACLU lawyers, who argued on behalf of the girl.

One of the three judges on the case’s panel was Brett Kavanaugh, whose dissenting opinion accused the court of authorizing “immediate abortion on demand” for “unlawful immigrant minors.” Kavanaugh’s proposed solution for the case was to leave the girl in legal limbo until her pregnancy exceeded Texas’s 20-week limit on legal abortions so that she would be forced to carry the baby to term. Ultimately, the court ruled in favor of the ACLU and the girl was able to get an abortion.

“I think the most telling thing about that case was that he [Kavanaugh] did not think what she wanted was relevant,” Blalock said. “If the minor has an opinion on what they want, but he sees that as not relevant, that’s kind of an extreme view.”

A recent poll conducted by the Kaiser Family Foundation found that only 29 percent of Americans say they want Roe v. Wade to be overturned. When we break down the percentages of Americans who are for and against abortion by demographic, it’s apparent that the divide is deeply ideological and partisan. Nearly 90 percent of self-identifying liberal Democrats think abortion should be legal in all or most cases, compared to only about 27 percent of conservative Republicans, according to the Pew Research Center.

Bliss Brown, a student affairs professional who served as prevention educator for the Women’s Resource Center in Norman, Oklahoma, said she thinks it’s possible for a person to be both pro-choice and pro-life. “I think that you can say ‘Well, I would not be comfortable having an abortion because I think that’s taking a life,’ but you can also have the ability to believe and know that’s your choice and someone else might have different feelings and thoughts and that’s their choice,” Brown said.

We asked Blalock, Blake and Brown how they think the issue of abortion will eventually be solved or reconciled.

Blake believes the ideal solution to the abortion debate is to leave women’s reproductive rights in the hands of women themselves. “The answer to the whole thing is simply to get off our backs, get out of our lives and quit trying to tell women what to do or what not to do,” she said. “If they could just leave us alone and leave the reproductive system to the women and their doctors or the families and their doctors, that would be wonderful. That would be a perfect world for women.”

Blalock thinks our best hope of finding a solution that will satisfy those on both sides of the divide will likely arise as technology progresses. “My hope for our society is technology, so that if they want to do away with that embryo they can find another womb to put it in and hopefully that would satisfy everyone so they wouldn’t feel like they were messing with God’s plan,” she said. “Hopefully that’ll be the answer, because both sides are so dug in. The technology isn’t there yet, but I think it’ll get there.”

Finally, Brown believes that the issue of abortion will not start to become less divisive until our culture deems women capable of making their own decisions. “I wish it didn’t have to be so partisan,” she said. “I think what pro-choice is ultimately all about is giving people the choice for themselves based on the individual and their individual circumstances. And I don’t think that’s going to happen until people start listening to women and believing that women are capable of making decisions for themselves. It’s very apparent that’s not happening yet.”

Now that Kavanaugh is confirmed to the court, the likely demise of Roe v. Wade is not the only issue progressive voters should be concerned about. Kavanaugh is taking the seat vacated by Justice Anthony Kennedy, who voted with conservative justices 71.3 percent of the time, according to the Supreme Court Database. However, Kennedy cast the deciding vote with the liberal justices on more than one landmark case, including the decision to uphold Roe v. Wade in Planned Parenthood v. Casey in 1992 and the 2015 case that legalized gay marriage nationwide, Obergefell v. Hodges.

Ultimately, the decision regarding Brett Kavanaugh’s confirmation to the United States Supreme Court came down to a small handful of “wild card” senators, with Republican pro-choice senator Susan Collins of Maine casting a decisive vote. The Supreme Court has leaned conservative for over 45 years, and now that Kavanaugh has been confirmed we will see the most conservative court since the 1930s. It remains to be seen, however, what the political fallout of this vote will be for both the short and long term.

“What I think it is, is that there is an understanding that money equals power and those that have the money are somehow entitled to power,” Blalock said. “And we no longer have a valid judicial system when it’s all based on who has money who has power. I’m fearful of what is happening.” ♀

Devin is pursuing degrees in international studies and journalism at the University of Oklahoma. She spent the last year studying abroad in Edinburgh, Scotland, where she dabbled in Scottish improv and was frequently mistaken for a local. In the future, she hopes to be a speechwriter for the first female president and maybe start a true crime podcast. If this doesn’t work out, her backup plan is to give into her hippie spirit, buy a light blue VW bug and travel around the world meeting as many interesting people and petting as many dogs along the way as she possibly can.