New Jersey in a Post-Roe v. Wade World: Craig Coughlin and a Woman’s Right to Choose

Three peas in a pod: Murphy, Coughlin and Sweeney.

Two weeks ago, I made a prediction that the United States Supreme Court would shortly overturn its 1973 decision in the Roe v. Wade case.  That decision established a federal protection for a woman’s right to choose to have an abortion, free from state interference, under a “penumbra of privacy” existing under the Ninth Amendment to the United States Constitution.

In Roe, the High Court found that this right of choice would exist until the end of the second trimester, to wit, the first 24 weeks of pregnancy. The rationale of the 24-week date is that it marks the beginning of “fetal viability;” i.e.; the ability of a fetus to survive outside the uterus.

My prediction was made in the context of current appeals to the Supreme Court to overturn the decision in Roe.  These appeals are part and parcel of pleadings to uphold the constitutionality of abortion laws passed in Texas and Mississippi limiting the right of choice to far less than the current Roe-mandated 24 weeks (Texas- six weeks, Mississippi 15 weeks).

I made my prediction based upon my appraisal of the various current US Supreme Court justices.  There are five anti-abortion zealots on the Supreme Court: Samuel Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.

It has been unclear to many, although not to me, as to whether Kavanaugh and Barrett would support the reversal of Roe.  Based on their statements at yesterday’s oral arguments, there is no doubt that they will.

Kavanaugh was unequivocal as to his belief that the US Constitution is neutral on abortion and that the issue should be decided by the individual states.  This is the essence of the anti-Roe advocacy.

Barrett went much further in her opposition to Roe. She asked whether adoption laws remove the burden of parenthood, specifically, the existence of safe-haven laws, versions of which exist in every state, which prevent parents or guardians from getting into legal trouble for voluntarily giving up a newborn baby.

Chief Justice John Roberts has expressed a willingness to hold the Texas and Mississippi abortion statutes in question to be constitutional.  He is an institutionalist, however, and he wants to approve the Texas and Mississippi statutes without overturning Roe v. Wade.

The Roberts solution is to affirm Roe while lowering the viability standard from 40 weeks to 16.  None of the five anti-abortion zealot justices expressed in the oral arguments yesterday any interest in such a viability modification.  They want to end all federal protection for a woman’s right to choose, and now is their big chance.

The reversal of Roe v. Wade will result in the legality of abortion being a matter for each state to decide.  There are 24 states that have statutes making abortion illegal in those jurisdictions.  These statutes, which were superseded by Roe, would once again become fully operative prohibitions against abortion the moment Roe v. Wade is reversed.

In New Jersey, there is no statute prohibiting abortion or affirming the right of abortion choice.  A woman’s right to choose has been affirmed by the state courts.

The New Jersey issue involves the possibility of those state court decisions being reversed.  As we have learned from the Roe v. Wade saga, if the political climate changes and new justices are appointed, all these pro-choice decisions are subject to reversal.  If future appointed right-wing judges in New Jersey hold that abortion is murder, this would make women exercising abortion choice subject to criminal prosecution.

Such a scenario is very plausible in New Jersey if, for example, Republican State Senator Michael Testa, Jr. is ever elected governor, which is his driving ambition.  He is an anti-abortion zealot, and he is likely to appoint anti-choice judges who would criminalize a woman’s right to choose.

Therefore, in order to protect a woman’s right to choose, New Jersey must pass the currently pending Reproductive Freedom Act codifying this right.

The Reproductive Freedom Act, (RFA) in its current form would provide an unlimited right to abortion up until the end of the 40 weeks of a normal pregnancy.  It would also provide protection to the undocumented, plus substantial insurance coverage for the procedure.

Doubtless, the forty-week period will be pared down.  Nevertheless, any revised bill is likely to at least protect the woman’s right to choose for the 24-week period established by Roe v. Wade.

Governor Phil Murphy is in solid support of the RFA.  The question is the willingness of legislative leadership in both houses to post it for a vote.  The decision makers in this regard in the Senate are 1) Senate President Steve Sweeney, who departs the Senate in January, and his already elected successor, Nick Scutari; and 2) Assembly Speaker Craig Coughlin.

Based upon my discussion with sources, there appears to be a misperception in the media as to what legislative leaders may be blocking the furtherance of the Reproductive Freedom Act. What I have learned is that neither Sweeney nor Scutari is attempting to obstruct the progress of the bill; in fact, Sweeney expressed to some of my sources a willingness to negotiate.

By contrast, I have learned that Craig Coughlin vehemently refuses to commit to supporting the RFA, let alone posting it.  He publishes statements through his Assembly Democratic  press representatives how he is committed to protecting a woman’s right to choose.  Yet his refusal to date to support the RFA indicates that his commitment may be hollow. The situation is in a state of flux, as the speaker and his allies try to ascertain if he wants to amend the bill. That has not been determined as of yet.

Coughlin has an acute political dilemma.  He wants to run for governor in 2025.

His non-support of the RFA could hurt him badly with women voters, particularly the college educated, which are a mainstay of the Democratic Party.

There may be another factor which is influencing the judgment of Coughlin on the RFA.

The Speaker is known to be friendly with James F. Checchio, Bishop of the Diocese of Metuchen.  Have they discussed the RFA?  There is no doubt that the Catholic Church will be an active opponent of the RFA, and if Roe is overturned, they will redouble their efforts.

The future of a New Jersey woman’s right to choose may be in the hands of Craig Coughlin. It is worthwhile to observe him closely.

Alan J. Steinberg served as regional administrator of Region 2 EPA during the administration of former President George W. Bush and as executive director of the New Jersey Meadowlands Commission.

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