Roe v. Wade is Doomed
Roe set out to strike a balance between bodily autonomy and fetal protection. The Court is about to toss all that aside in the name of states' rights.
Roe v. Wade is doomed. At least that’s my impression from listening to oral arguments last week in the Supreme Court case Dobbs v. Jackson Women’s Health Organization.
We should be clear what that means legally, though. What people generally know about Roe is that it legalized abortion in the United States. More precisely, Roe found that the “right to privacy” derived from the Due Process Clause of the Fourteenth Amendment protects someone’s right to get an abortion. That right, however, isn’t absolute and must be balanced against the government’s interests in “safeguarding health, maintaining medical standards, and in protecting potential life.” Consequently, Roe effectively overturned numerous state laws that, according to the Supreme Court’s standards, excessively restricted abortion.
If the Court overturns Roe, which seems likely, it would not make abortion illegal in the United States. That is crucial to understand. Instead, the Court would likely rule there is nothing in the Constitution that indicates abortion is a right and return the broad power to regulate abortion to the states. Some states may go so far as to ban abortion all together; others may place no restrictions on the procedure. But overturning Roe would not make abortion illegal everywhere in the United States. The states would regulate it on a state-by-state basis.
It’s possible the Court could preserve Roe by altering the balance it seeks to strike between the right to an abortion and the state’s interests in protecting the fetus and the health of the pregnant person. Roe struck that regulatory balance by adopting a framework based on trimesters, which basically meant the power of the state to regulate abortion increased over the course of the pregnancy. The Court abandoned that framework in the 1992 case Planned Parenthood v. Casey and replaced it with the viability standard, which held states have more power to regulate abortion after the fetus reaches the point of viability (that is, when a fetus can survive outside the womb, which occurs approximately 24 weeks into a pregnancy) than before. In oral arguments last week, Chief Justice John Roberts seemed receptive to abandoning the viability standard in favor of some other framework that would presumably allow states to regulate abortion earlier in a pregnancy, perhaps as early as 15 weeks (that’s the point at which the Mississippi law under review in Dobbs would ban abortion.) If the Court followed Roberts’ lead, it would preserve the idea found in Roe that the Constitution protects the right to get an abortion but significantly narrow the time during a pregnancy when that right is virtually unrestricted.
But of the Court’s six conservative justices, Roberts seems alone on an island on this one. Clarence Thomas, Samuel Alito, and Neil Gorsuch (who is on the bench because Mitch McConnell held his seat open for over a year following the 2016 death of Antonin Scalia since it was supposedly unprincipled to name a justice to the Supreme Court during an election year) are ready to ditch Roe. Amy Coney Barrett (who is on the bench because Mitch McConnell rammed her confirmation hearing through the Senate less than a month before the 2020 election following the September death of Ruth Bader Ginsburg) indicated she didn’t see much use for Roe anymore now that every state has adopted safe haven laws that allow parents to drop off unwanted babies at police stations, hospitals, and firehouses.
That leaves Brett Kavanaugh, who told the Senate Judiciary Committee during his 2018 confirmation hearing that he considered Roe v. Wade “settled as precedent” and that “the system of precedence rooted in the Constitution…is not a matter of policy to be discarded at whim.” Just listen to him here:
One of the important things to keep in mind about Roe v. Wade is that it has been reaffirmed many times over the past 45 years, as you know, and most prominently, most importantly, reaffirmed in Planned Parenthood v. Casey in 1992. It is not as if it is just a run-of-the-mill case that was decided and never been reconsidered, but Casey specifically reconsidered it, applied the stare decisis factors, and decided to reaffirm it. That makes Casey a precedent on precedent.
“Precedent on precedent”! That’s, like, layers of precedent there, which Kavanaugh thinks you can’t just “discard at whim.” Sounds like Roe is safe in hands!
That’s what Republican Senator Susan Collins of Maine believed, too. She told CNN at the time of Kavanaugh’s confirmation hearing, “I would not support a nominee that demonstrated hostility to Roe v. Wade because that would mean to me that their judicial philosophy did not include a respect for established decisions.” After meeting with him, she said, “We talked about whether he considered Roe to be settled law. He said that he agreed with what Justice Roberts said at his nomination hearing, in which he said that it was settled law.”
I guess maybe the catch is that Roe v. Wade was settled law before Kavanaugh got onto the Court to unsettle it because during oral arguments last week he sure went out of his way to poke holes in the idea that the Court ought to respect its prior rulings, particularly when it comes to abortion, an issue he apparently wants the Court to wipe its hands clean of and kick back to the states to regulate as they see fit.
Now I’m going to get into all this in just a bit, but first, let’s take a moment to note Susan Collins is either a sucker or a liar and should just go home now I’m so tired of her. This gets rich: A few hours after Kavanaugh lit a match under Roe, a Collins spokeswoman fired off a statement saying the senator wanted to codify Roe and Casey as federal law, which is an empty sentiment because a.) She’s just now getting around to that task after nearly twenty-five years in Washington; b.) She could have helped protect abortion rights by refusing to support any Trump nominee to the Supreme Court since Trump said he would only nominate someone who would “automatically” overturn Roe (That’s a pretty big tell, Susan!); and c.) She knows there isn’t a snowball’s chance in hell a bill like hers could get through today’s Senate, which can barely keep the government’s lights on as it is. So yeah, Collins is either so naïve she got played for a chump or is a lying anti-abortion senator.
And as for Kavanaugh…yeah, if he can tell a Senate committee in plain language that he considers Roe “settled as precedent” and then tell Susan Collins (if she’s just a fool but not a liar) that Roe is “settled law” and then throw all that under the bus once he’s ensconced on the Court, I kind of have to wonder what else he may have lied about during his confirmation hearing. I bet Squi knows…
Anyway, back to legal matters. During oral arguments, Kavanaugh was suddenly singing a different tune on stare decisis/precedent:
As I’ve looked at it, and the history of how the court applied stare decisis, and when you really dig into it, history tells a somewhat a different story, I think, than what is sometimes assumed. If you think about some of the most important cases, some of the most consequential cases in this Court’s history, there’s a string of them where the cases overruled precedent.
My goodness, Brett’s learned so much about the history of the Supreme Court since he started working there! Kavanaugh then went on to list a number of cases that overturned precedent, the most famous of which is probably Brown v. Board of Education (1954), which threw out the racially discriminatory “separate but equal” ruling in Plessy v. Ferguson (1896).
But I’ll admit, I’m with Kavanaugh on this one, specifically Justice Kavanaugh, not nominee Kavanaugh. He’s right: If a justice thinks a case has been decided incorrectly, that justice shouldn’t just roll over and accept the law as settled in future cases. If they did that, the Court would never be able to correct its errors. Make no mistake, precedent carries massive legal weight and, for stability’s sake, shouldn’t easily be tossed to the side. But yes, there are times when the Court should overrule precedent.
Based on his comments, Kavanaugh sure seems to believe this is one of those occasions. He appears to think the Court got Roe wrong by intervening in matters the Constitution does not address and that the best thing for the Court to do now to fix that is not to “pick sides” in the abortion debate but adopt a “scrupulously neutral” position on whether abortion should be legal or not and leave it up to each of the fifty states to decide what the law should be. Here’s Kavanaugh again, explaining how all this will work to the Solicitor General and begging her to disagree with this ingenious plan:
There will be different answers in Mississippi and New York, different answers in Alabama and California, because there are two different interests [the interests of the person seeking the abortion and the interests of the fetus] at stake and the people in those states might value those interests somewhat differently. Why is that not the right answer?
Well thanks for asking, Justice Kavanaugh, I’ll tell you why it’s not the right answer: Because there is nothing about the nature of a pregnant person’s status as a pregnant person that is dependent upon the state they live in. A pregnant person in Mississippi by nature isn’t any different from a pregnant person in California. A pregnant person who moves from California to Mississippi doesn’t suddenly enter a physical space where specific local circumstances recommend laws tailored specifically to that locale. No state—blue or red or somewhere in-between—can point to anything distinct about their state that can justify whatever framework they put in place to regulate abortion.
‘But we’re not talking about geographic differences here,’ Justice Kavanaugh may exclaim. ‘What matters is how the sovereign citizens of those states have different values when it comes to abortion. Those citizens should be able to express their values through their states’ laws.’
To which I would respond, first, if it’s so important for citizens to be able to express their values on this issue, just let the citizens do that on an individual basis rather than expressing it through the filter of state legislatures. Rather than a collective state choice, abortion would be a matter of personal choice.
Secondly (and I’ve written about this before) the notion that the citizens of a state today share so much in common that they compose a unique cultural constituency that deserves political recognition in their own right is a quaint but outmoded idea. There is too much difference within states (i.e., between New York City and upstate New York, or between Philadelphia and central Pennsylvania) and more commonality between distinct regions of various states (i.e., between New York City and Philadelphia, and between upstate New York and central Pennsylvania) to sustain the idea that most states in the twenty-first century are demographically special places composed of people with locale-specific cultural, political, and moral perspectives. In most cases, therefore, a state majority doesn’t reflect the unique sensibilities of that particular place’s people but rather the point of view of the numerically largest group within an area that was defined in some cases hundreds of years ago as a “state.” A “state” is in reality no more (and often less) politically significant as a cultural unit than a “city” or “town” or “county” or “metro area” or “region”; political power could just as easily be devolved to those jurisdictions.
Now I am aware states are kind of a big deal here in the United (ahem) States. Each one even gets a star on the flag. And yes, the Tenth Amendment states that any power not granted to the federal government nor prohibited by it to the states belongs to the states. That’s the idea of federalism. Kavanaugh might argue that since the Constitution doesn’t say anything about abortion, the power to regulate abortion belongs to the states. I would argue that’s an increasingly old-fashioned way to think about federalism, one passed down to us from a time when people lived more localized lives and identified themselves first and foremost as citizens of a state. A better way to think about federalism would be as a matter of administration: What sort of laws should be established by local authorities rather than national authorities?
Something like speed limits makes sense as a local issue, but abortion sure doesn’t. As I wrote earlier, the nature of a pregnant person is the same whether that person is in California or Mississippi. A fetus is a fetus whether that fetus is in California or Mississippi. The main issues in the abortion debate—bodily autonomy and the protection of potential life—don’t change moral content when they cross state borders. It’s a rights issue about matters involving life and control over one’s own body, making it a national issue. It doesn’t belong in the hands of the states, who could potentially come up with fifty different laws to regulate something that, because it involves rights belonging to every citizen, requires one—not fifty—solutions.
The tricky thing for most Americans about the abortion debate is not that it’s a rights issue but that it involves a conflict between two ideas of supreme importance—bodily autonomy and fetal protection—that are very difficult to resolve in light of each other. Kavanaugh seems to argue the states are well-positioned to resolve that conflict if the Supreme Court would just get out of their way by overturning Roe. The problem is many states wouldn’t try to resolve that conflict; instead, a lot of states would simply take one of those major interests—bodily autonomy, or the right to control what happens to one’s own body—and dismiss it. That’s not the “neutrality” Kavanaugh is seeking, but rather allowing states to ignore a right, which perpetuates an injustice. We’ve been down that path before with Plessy, which allowed states to infringe on the rights of its citizens. The lesson Kavanaugh should take from that case is not that a precedent was overturned but that it needed to be overturned because it did not defend a right possessed by all Americans. (Here’s Justice John Marshall Harlan from his dissent in Plessy: “In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.”)
If you’ve taken a college course on constitutional law (and I’m not assuming you have) you will know Roe v. Wade is, oh, how shall we say this…rather messy as far as constitutional jurisprudence goes. Not only does it end up extrapolating a right to an abortion from a Constitution that hints at a right to privacy and does not mention ideas like “abortion” or “women,” but it also cobbles together a method of applying those rights—the trimester framework—that goes way beyond any kind of guidance the Constitution provides.
But one of Roe’s major insights is that human beings ought to have control over what happens to their bodies, thus the right to have an abortion to terminate a pregnancy. And Roe does that while recognizing that right needs to be balanced against the government’s interest in protecting the fetus. Roe’s author, Justice Harry Blackmun, could have left it at that, but the Court would have been deluged with cases from across the United States challenging the validity of various abortion laws. So Blackmun attempted to head that off with the trimester framework. It was an inelegant but practical way to handle a constitutional dilemma with no clear resolution.
Ideally, the task of regulating abortion throughout the United States would have been resolved democratically by Congress in a way that would have passed constitutional muster with the Supreme Court. Would Congress have had the constitutional authority to do that? I suppose they could have cited the Commerce Clause as a pretense for action; that, after all (and perversely) is the justification the Civil Rights Act of 1964 hangs upon. But as a question of rights, it fell to the Court to find a solution. Roe represents the Court’s attempt to balance the rights and interests in that debate. Whatever you think of John Roberts’ openness to Mississippi’s ban on abortion after fifteen weeks, at least he’s still playing by Roe’s rules by searching for that balance.
Kavanaugh and the other conservatives on the Court seem uninterested in that balance, however. They would turn a set of rights—not only the right to bodily autonomy, but also, ironically, any rights the fetus might have, too (unless Dobbs turns into the opening salvo of an attempt to assert the preeminence of fetal rights over the rights of pregnant people) into political footballs. Kavanaugh and Barrett may still surprise us, though. We’ll see in a few months. But I’m guessing Roe is toast.
Exit music: “Stand Back” by Stevie Nicks (1983, The Wild Heart)