Roe vs. Wade: On the Ropes?

The Left sweats.

“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” Justice Sonia Sotomayor asked as she contemplated the potential overturning of Roe v Wade. Justice Sotomayor made this remark during oral arguments before the Supreme Court on December 1st in the case involving a challenge to Mississippi’s law prohibiting abortions after 15 weeks of pregnancy, with limited exceptions.

Concerned that the Supreme Court’s reversal of its abortion rights precedents following a change in the ideological composition of the Supreme Court would make the Court look too political, Justice Stephen G. Breyer expressed the view that such a perception is “what kills us as an American institution.”

Justice Elena Kagan raised similar concerns.

The liberals on the Supreme Court, in short, are raising the specter of loss of legitimacy of the highest court in the land to justify leaving Roe v. Wade, as reaffirmed in Planned Parenthood v. Casey, untouched.  Overruling or fundamentally changing these precedents would jeopardize this legitimacy, they argue.

Justice Brett Kavanaugh challenged the liberals' argument with a long list of major precedents the Supreme Court has overruled in the past, most notably the separate-but-equal decision in Plessy v. Ferguson overruled by Brown v. Board of Education. The liberal justices and the attorneys arguing to preserve Roe and Casey tried to distinguish the Brown v. Board of Education decision overruling Plessy from what would happen if Roe and Casey were overturned or sharply curtailed.

Roe’s defenders argue that tampering with the Roe and Casey precedents would have a profoundly negative effect on peoples’ lives while Brown’s overturning of Plessy had the positive effect of providing more equal opportunity for a quality education irrespective of race. Women have relied on the right to choose an abortion for generations, the liberals’ argument goes, which has relieved them of the burden of forced motherhood and thereby helped them to achieve true equality.

It is true that deference to Supreme Court precedents – the principle known as stare decisis – is an important means of maintaining continuity and stability in jurisprudence, enhancing the credibility of an independent judiciary in the long run. However, while legal precedents should ordinarily not be overruled without very strong reasons for doing so, some court decisions were clearly wrong when they were decided or became hopelessly outdated over time.

Brown v. Board of Education has won so much respect over the years because it finally overturned the horrible prior precedent of Plessy v. Ferguson that certainly deserved no deference. Plessy v. Ferguson’s separate-but-equal doctrine had given legal cover to Jim Crow-era state laws imposing racial segregation that ran counter to constitutional amendments enacted following the Civil War. The 13th, 14th, and 15th amendments had explicitly sought to expand racial equality under the law.

Despite initial resistance in parts of the country, the Brown v. Board of Education decision helped move the country closer to national acceptance of the notion that segregation of public education based solely on race was a violation of the Constitution’s guarantee of equal protection under the law regardless of race. The history and text of the 14th Amendment in particular clearly pointed in this direction. Moreover, Brown laid down a clearly understandable and enforceable rule of law.

Nothing in the Constitution provides a credible basis for the Supreme Court’s abortion rights decisions. In fact, the Supreme Court’s abortion jurisprudence broke with historical precedent when it took the power to regulate abortion largely out of the states’ hands and created a new constitutional right to abortion out of whole cloth. The Roe decision concluded that only after the fetus reaches the stage of viability may a state promote “its interest in the potentiality of human life” by regulating, and even proscribing, abortion, with limited medical necessity exceptions.

There is in fact actual human life developing inside the woman’s womb before birth that will continue to develop after birth unless something or someone intervenes to stop it. Human life is a continuum. Viability is only one point in time during that continuum, not an on-off-switch for human life.

Viability, particularly with advancements in science changing the definition and timing of viability, is not a workable legal standard for practical purposes. Indeed, in another abortion case, the Supreme Court acknowledged “the uncertainty of the viability determination itself,” adding that “the probability of any particular fetus' obtaining meaningful life outside the womb can be determined only with difficulty.”

Nevertheless, the Supreme Court jeopardized its own legitimacy in Roe by bestowing upon pregnant women a new supposed “due process” right to end an evolving human being’s life before that human being even has the chance to remain “viable” outside the woman’s womb. According to Roe, a pregnant woman’s “liberty” from the burdens of continued pregnancy and of motherhood is given so much constitutional protection that the human life temporarily growing inside that woman can be treated like a disposable appendage.

The majority in the Roe decision determined arbitrarily that the word “person” as used in the Constitution for invoking constitutional protections of individual rights did not apply to the unborn human being, Yet, in a display of inconsistency, the majority still recognized that what it called “potential human life” deserved some measure of government protection in its own right before birth. Just as arbitrarily, the Supreme Court chose the elusive “viability” threshold as the tipping point for granting such protection.

The Supreme Court majority in Roe recognized “the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires.” However, the Court’s abortion decisions have done nothing in nearly five decades to resolve the controversy and help the nation reach a reasonable consensus. Indeed, they have caused more polarization and confusion over this highly “sensitive and emotional” issue.

Such complex policy issues as abortion are tailor made for resolution through the democratic political process. Moreover, the health and welfare of the mother and of the fetus are clearly within the jurisdiction of each state to regulate through laws passed by elected officials accountable to the people. This had been the case when it came to dealing with the abortion issue until the 1973 Roe. v. Wade decision suddenly reversed many years of historical precedent.

verturning Roe and Casey, or at least sharply reducing their potential to interfere with the rights reserved to the states and the people under the Constitution’s 10th Amendment, would restore judicial respect for the democratic will of the people in each state, as expressed through their elected representatives.

Defenders of Roe and Casey claim that their decades-old guarantee of a woman’s constitutional right to decide whether to end her pregnancy before viability has engendered too much individual and societal reliance to turn the clock back now. Women, as explained by U.S. Solicitor General Elizabeth Prelogar during the Mississippi case oral arguments, have counted on the ability to organize their lives with the knowledge that they have substantial time during pregnancy to choose whether to have a child. These include decisions about where to live, what relationships to enter into, their education, and their careers.

This reliance argument is very weak for several reasons.

First, the fact that individuals and society have supposedly relied for decades on an entrenched precedent can be used perversely to justify adhering stubbornly to an abominable precedent. As Justice Samuel Alito pointed out during the oral arguments, referencing the South’s build up of a whole society based on an edifice of legal segregation, “there was a lot of reliance on Plessy…It was reliance on an egregiously wrong understanding of what equal protection means.”

Second, claiming reliance on Roe and Casey begs the question of what norms of behavior regarding abortion had developed as a direct result of those decisions.  “Abortion should be safe, legal, and rare” was the formulation that pro-abortion Democrats had used for years following the Roe and Casey decisions to describe the societal norm they had in mind. Even Hillary Clinton – an avowed abortion supporter – used this formulation as late as her 2008 presidential campaign. But abortion rights advocates have since moved the goal posts to embrace the more extreme standard of permissive abortion in the name of  “autonomy” and “bodily integrity.”  

In short, the “reliance” that abortion rights advocates are now talking about is not reliance on the “safe, legal, and rare” norm of behavior that had originally emerged following the Roe and Casey decisions and which remained that way for years thereafter. Rather, these activists mean “reliance” on their own permissive version of a norm that encourages easily accessible and plentiful abortions.

Third, upholding Mississippi’s 15-week limitation on most permissible abortions, or even overturning Roe v. Wade altogether, would not ban abortions nationwide. It would simply restore power to the states to regulate abortion in their respective jurisdictions unless Congress steps in and legislates a national policy.

This is not 1973, the year that Roe was decided, when abortion was generally legal in only four states. Today, while the country is still deeply divided on how to resolve the abortion issue, abortion “would remain legal in more than half of states,” according to a New York Times report. The New York Times estimates that abortion would be banned or severely restricted in twenty-two states.  

Even without Roe and Casey still in place, women in many more states than fifty years ago would still have the same liberties that they have today to choose whether to have an abortion. Women in those states with strict limitations on abortions will have more states to travel to where such restrictions on abortions would not exist, with whatever financial help if needed that pro-abortion donors are willing to provide.  

The Supreme Court will probably not release its decision on the Mississippi case until next June or early July. Although the Supreme Court’s liberal bloc - Justices Breyer, Kagan, and Sotomayor – will no doubt dissent from any outcome that would change the Roe and Casey rulings, most Supreme Court prognosticators are predicting that Roe and Casey will not survive intact.

Some prognosticators are predicting a complete overruling of Roe and Casey. They believe, based on comments and questions during the oral argument, that at least the five most conservative justices – Justices Alito, Clarence Thomas, Neil M. Gorsuch, Brett Kavanaugh and Amy Coney Barrett – are ready to make a definitive break from the past. Other prognosticators are predicting a narrower outcome that would uphold the Mississippi law’s 15-week cut-off for permitted abortions while not overruling Roe and Casey entirely, at least for now. This more incremental approach, which could gain the support of Justices Kavanaugh and/or Barrett, would seem to be where Chief Justice John Roberts is heading. The chief justice has on a number of occasions demonstrated concern for preserving the institutional legitimacy of the Supreme Court as his top priority.

In either case, it is a fair bet that a significant change in the Supreme Court’s abortion jurisprudence is in the offing and that the left will not be happy.

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