I had thought that it might be hard to overturn Roe v. Wade because those who are directly affected by it — unborn children — lack “standing”; that is, they are not “persons” under the law. But I was prematurely pessimistic. The tools with which Roe can be dismantled are at hand, in challenges to the abortion-limitation laws of various States and in the very language of the Roe decision. [UPDATE 03/01/19: If this Texas bill becomes law, it’s sure to end up in the Supreme Court.] [UPDATE 03/06/19: Here is the perfect case on which to build the Supreme Court ruling that I propose below.]
To begin at the beginning, Roe precludes unborn children from “personhood”. Justice Blackmun wrote in his opinion for a 7-2 majority that the
Constitution does not define “person” in so many words. Section 1 of the Fourteenth Amendment contains three references to “person.”… The word also appears both in the Due Process Clause and in the Equal Protection Clause. “Person” is used in other places in the Constitution…. But in nearly all these instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible pre-natal application.
All this, together with our observation … that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word “person,” as used in the Fourteenth Amendment, does not include the unborn….
Inasmuch as a non-person has no rights, the majority could have found an unlimited “right” to abortion. Instead, the majority flinched and recognized a status between fetus and person:
(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.
(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother [emphasis added].
Roe was “upheld” in Planned Parenthood v. Casey, but with some twists that are the subject of Chief Justice’s dissent, quoted at length below. The key point of Casey (for purposes of this post) is that it admits the state’s interest in the potentiality of human life, and variations on that theme, which I have emphasized in the following excerpts of the controlling opinion in Casey:
The woman’s right to terminate her pregnancy before viability is the most central principle of Roe v. Wade. It is a rule of law and a component of liberty we cannot renounce.
On the other side of the equation is the interest of the State in the protection of potential life. The Roe Court recognized the State’s “important and legitimate interest in protecting the potentiality of human life.”…
Yet it must be remembered that Roe v. Wade speaks with clarity in establishing not only the woman’s liberty but also the State’s “important and legitimate interest in potential life.” That portion of the decision in Roe has been given too little acknowledgment and implementation by the Court in its subsequent cases….
We reject the trimester framework, which we do not consider to be part of the essential holding of Roe…. The trimester framework suffers from these basic flaws: in its formulation it misconceives the nature of the pregnant woman’s interest; and in practice it undervalues the State’s interest in potential life, as recognized in Roe.
The very notion that the State has a substantial interest in potential life leads to the conclusion that not all regulations must be deemed unwarranted. Not all burdens on the right to decide whether to terminate a pregnancy will be undue. In our view, the undue burden standard is the appropriate means of reconciling the State’s interest with the woman’s constitutionally protected liberty.
Hold that thought.
According to Wikipedia, Casey
replaced the strict scrutiny analysis under Roe, with the “undue burden” standard…. A legal restriction posing an undue burden is one that has “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” An undue burden is found even where a statute purports to further the interest of potential life or another valid state interest, if it places a substantial obstacle in the path of a woman’s fundamental right to choice. The Supreme Court in the 2016 case Whole Woman’s Health v. Hellerstedt clarified exactly what the ‘undue burden’ test requires: “Casey requires courts to consider the burdens a law imposes on abortion access together with the benefits those laws confer.”
Hellerstedt overturned statutory restrictions on abortion providers that had been adopted by Texas. The 5-3 opinion was written by Justice Breyer and joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan. Chief Justice Roberts and Justices Thomas and Alito filed dissents. Justice Scalia, who had died earlier in the year, had yet to be replaced by Justice Gorsuch. Justice Kennedy has since retired and been replaced by Justice Kavanaugh.
Given the significant changes in the Court’s membership since Hellerstedt, advocates of abortion are right to be worried about the fate of Roe v. Wade and its successors. Elisabeth Dias and Timothy Williams of The New York Times explain:
Several challenges to federal abortion law are pending before the Supreme Court and about a dozen are working their way up through federal circuit courts. Anti-abortion lawmakers and activists have targeted more than simply the restriction of abortion or its funding. They have worked to pass laws to control the range of issues that surround abortion, from burial of fetal tissue and custody of frozen embryos, to ultrasound requirements.
“It’s a continuation of a strategy that we’ve had for some time, which is to pass as many pro-life laws as we can at the state level with a strategy of bold incrementalism,” said Ralph Reed, founder of the Faith and Freedom Coalition, a social conservative political group….
The social conservative strategy has accelerated since 2010, when Republicans made significant gains in state legislatures. States have enacted more than 400 restrictions on abortion since 2011, according to the Guttmacher Institute, a research group that supports abortion rights….
In Indiana, a law signed in 2016 by Mike Pence, then the governor, aims to ban discrimination against a fetus on things like race, sex, and disability. Though it has passed on the case before, the Supreme Court could take it up as soon as next week, and argue it next term. “We are hoping to challenge Roe from this angle, the angle of discrimination,” said Sue Liebel, the state director for the Susan B. Anthony List. “It has never been tried before.”
Even if the first primary challenge does not come from Indiana, the nationwide momentum is “really good news” for the anti-abortion movement, she said.
“It probably will not be one case that will topple Roe all at once,” Ms. Liebel said. “It will probably be multiple pieces that will take chunks out of Roe.”
In Ohio, the state legislature is prepared to approve a bill this session that would ban abortion after a fetal heartbeat is detected, which could be as early as six weeks into a pregnancy. Anti-abortion activist groups like Right to Life Ohio championed the bill, while abortion rights advocates have pointed out that many women and girls are not even aware that they may be pregnant that early.
The legislation was initially approved by the legislature last year, but was vetoed by John Kasich, then the governor. But his successor, Mike DeWine, who like Mr. Kasich is a Republican, has said that he intends to sign the legislation.
“We were very hesitant on the heartbeat bill because we knew we had a hostile Supreme Court,” Mike Gonidakis, the president of Right to Life Ohio, said about the court before the elevation of Justices Brett M. Kavanaugh and Neil Gorsuch by President Trump. “The time is ripe to have the discussion now because of the current Supreme Court. We now see a pathway forward.”
More than 20 bills restricting abortion have become law in Ohio in the past eight years, including legislation that prohibits abortions after 20 weeks of pregnancy, and banning the most common abortion method used in the second trimester of pregnancy.
The Kentucky Legislature is currently considering a fetal heartbeat bill similar to legislation in Ohio, Florida, Mississippi, Missouri and South Carolina. Kentucky has in recent years approved several laws curtailing abortion rights that have been ruled unconstitutional, two of which could ultimately be decided by the Supreme Court.
The first requires doctors to perform an ultrasound before an abortion, then to display and describe the images, and finally, to make the fetal heartbeat audible. The second mandates abortion providers to enter into written transfer agreements with a local hospital, as well as arranging transport arrangements with ambulance services. Both are under appeals in the Sixth Circuit.
Some Democratic-controlled statehouses have recently worked to counter the groundswell from the right. New York expanded abortion rights last month for the first time in almost 50 years, permitting some abortions after 24 weeks of pregnancy. A Virginia legislator proposed a bill that would have lifted restrictions on late-term abortions, but the proposal was set aside in committee.
Amid all this activity, abortion rights activists are alarmed at [the recent] Louisiana decision because it is the clearest indicator yet of how Justice Kavanaugh might rule on abortion in future cases. In the 5-4 ruling, he wrote the dissent….
The Louisiana case is far from decided. The Supreme Court is likely to hear arguments on its merits in the next term, which begins in October.
What is Louisiana? Adam Liptak of The New York Times discusses it:
The Supreme Court on [February 7] blocked a Louisiana law that its opponents say could have left the state with only one doctor in a single clinic authorized to provide abortions.
The vote was 5 to 4, with Chief Justice John G. Roberts Jr. joining the court’s four-member liberal wing to form a majority….
The court’s brief order gave no reasons, and its action — a temporary stay — did not end the case. The court is likely to hear a challenge to the law on the merits in its next term, which starts in October.
Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh said they would have denied the stay. Only Justice Kavanaugh published a dissent, taking a middle position that acknowledged the key precedent and said he would have preferred more information on the precise effect of the law.
For Chief Justice Roberts, it was something of a turnaround, at least for now. He dissented in the court’s last major abortion case in 2016, voting to uphold a Texas law essentially identical to the one at issue in Thursday’s case….
Chief Justice Roberts has voted to sustain other laws restricting abortion. And his vote to grant a stay on Thursday, in other words, does not mean he will vote to strike down the Louisiana law when the case returns to the court.
The court [as discussed above] is likely to confront other abortion cases, too, as several state legislatures have recently enacted laws that seem calculated to try to force the Supreme Court to consider overruling Roe v. Wade.
What Liptak doesn’t mention is Roberts’s (vain) desire to make the Court seem apolitical. He tried to accomplish that by voting to deny the stay, as if that would avert the outrage that is certain to follow an eventual ruling in favor of the Louisiana law (or others of its ilk).
Unless Roberts reverses his stance on abortion, the Court can and should reverse Roe (and its progeny) by adopting the following argument:
1. It is a scientific and widely known fact that life begins at conception. Roe to the contrary notwithstanding, there is nothing “potential” about the life of a fetus. It is a living being, albeit dependent on its mother for survival until some point in gestation, when it becomes “viable”.
2. To deprive the fetus of life before “viability” is simply to prevent the fetus from becoming “viable” in almost every case. Lack of “viability” is therefore an irrelevant criterion for the termination of a pregnancy; it is a transparent excuse for the taking of a life.
3. Whether the fetus is a “person” under the law is irrelevant here. The fetus is a living human being, and aborting it (unless it has died in the womb) amounts to the taking of a human life.
4. It is a paramount interest of government to regulate the conditions under which a human life may be taken. A fetus (at all stages of development) is innocent human life that merits the full protection of government. A fetus should be aborted only when the preservation of its life poses an actual physical threat to the mother’s life, as certified unanimously by a panel of at least three licensed, board-certified specialists in relevant fields. Such a panel shall include at least one specialist in maternal-fetal medicine.
5. Roe and its progeny are therefore overruled. No government of or in the United States may allow abortion at any stage of pregnancy, except as provided in 4.
6. This ruling does not run afoul of the doctrine of stare decisis, which the plurality in Casey invoked in “upholding” Roe. Chief Justice Rehnquist amply and definitively addressed the plurality’s use of stare decisis in his Casey dissent:
The joint opinion of Justices O’Connor, Kennedy, and Souter cannot bring itself to say that Roe was correct as an original matter, but the authors are of the view that “the immediate question is not the soundness of Roe‘s resolution of the issue, but the precedential force that must be accorded to its holding.” Instead of claiming that Roe was correct as a matter of original constitutional interpretation, the opinion therefore contains an elaborate discussion of stare decisis. This discussion of the principle of stare decisis appears to be almost entirely dicta, because the joint opinion does not apply that principle in dealing with Roe. Roe decided that a woman had a fundamental right to an abortion. The joint opinion rejects that view. Roe decided that abortion regulations were to be subjected to “strict scrutiny” and could be justified only in the light of “compelling state interests.” The joint opinion rejects that view. Roe analyzed abortion regulation under a rigid trimester framework, a framework which has guided this Court’s decisionmaking for 19 years. The joint opinion rejects that framework.
Stare decisis is defined in Black’s Law Dictionary as meaning “to abide by, or adhere to, decided cases.” Whatever the “central holding” of Roe that is left after the joint opinion finishes dissecting it is surely not the result of that principle. While purporting to adhere to precedent, the joint opinion instead revises it. Roe continues to exist, but only in the way a storefront on a western movie set exists: a mere facade to give the illusion of reality. Decisions following Roe … are frankly overruled in part under the “undue burden” standard expounded in the joint opinion….
The joint opinion discusses several stare decisis factors which, it asserts, point toward retaining a portion of Roe. Two of these factors are that the main “factual underpinning” of Roe has remained the same, and that its doctrinal foundation is no weaker now than it was in 1973. Of course, what might be called the basic facts which gave rise to Roe have remained the same-women become pregnant, there is a point somewhere, depending on medical technology, where a fetus becomes viable, and women give birth to children. But this is only to say that the same facts which gave rise to Roe will continue to give rise to similar cases. It is not a reason, in and of itself, why those cases must be decided in the same incorrect manner as was the first case to deal with the question. And surely there is no requirement, in considering whether to depart from stare decisis in a constitutional case, that a decision be more wrong now than it was at the time it was rendered. If that were true, the most outlandish constitutional decision could survive forever, based simply on the fact that it was no more outlandish later than it was when originally rendered.
Nor does the joint opinion faithfully follow this alleged requirement. The opinion frankly concludes that Roe and its progeny were wrong in failing to recognize that the State’s interests in maternal health and in the protection of unborn human life exist throughout pregnancy. But there is no indication that these components of Roe are any more incorrect at this juncture than they were at its inception.
The joint opinion also points to the reliance interests involved in this context in its effort to explain why precedent must be followed for precedent’s sake. Certainly it is true that where reliance is truly at issue, as in the case of judicial decisions that have formed the basis for private decisions, “[c]onsiderations in favor of stare decisis are at their acme.” But, as the joint opinion apparently agrees, any traditional notion of reliance is not applicable here. The Court today cuts back on the protection afforded by Roe, and no one claims that this action defeats any reliance interest in the disavowed trimester framework. Similarly, reliance interests would not be diminished were the Court to go further and acknowledge the full error of Roe, as “reproductive planning could take virtually immediate account of” this action.
The joint opinion thus turns to what can only be described as an unconventional-and unconvincing-notion of reliance, a view based on the surmise that the availability of abortion since Roe has led to “two decades of economic and social developments” that would be undercut if the error of Roe were recognized. The joint opinion’s assertion of this fact is undeveloped and totally conclusory. In fact, one cannot be sure to what economic and social developments the opinion is referring. Surely it is dubious to suggest that women have reached their “places in society” in reliance upon Roe, rather than as a result of their determination to obtain higher education and compete with men in the job market, and of society’s increasing recognition of their ability to fill positions that were previously thought to be reserved only for men.
In the end, having failed to put forth any evidence to prove any true reliance, the joint opinion’s argument is based solely on generalized assertions about the national psyche, on a belief that the people of this country have grown accustomed to the Roe decision over the last 19 years and have “ordered their thinking and living around” it. As an initial matter, one might inquire how the joint opinion can view the “central holding” of Roe as so deeply rooted in our constitutional culture, when it so casually uproots and disposes of that same decision’s trimester framework. Furthermore, at various points in the past, the same could have been said about this Court’s erroneous decisions that the Constitution allowed “separate but equal” treatment of minorities, see Plessy v. Ferguson, or that “liberty” under the Due Process Clause protected “freedom of contract,” see Adkins v. Children’s Hospital of District of Columbia [and] Lochner v. New York. The “separate but equal” doctrine lasted 58 years after Plessy, and Lochner’s protection of contractual freedom lasted 32 years. However, the simple fact that a generation or more had grown used to these major decisions did not prevent the Court from correcting its errors in those cases, nor should it prevent us from correctly interpreting the Constitution here.
I will be surprised if Roberts will go that far. If the Court does overturn Roe, it is more likely to outlaw or severely restrict abortion after “viability”. But a principled majority would rule as I have suggested — and damn the consequences. The Court isn’t in a popularity contest. Its job is to get the law right. And the law in this case, has been deadly wrong since Roe was decided 46 years ago.
For much more, including the issue of privacy, which was central to Roe, see “Abortion Q & A“.