More than 200 members of Congress signed an amicus brief last week in support of the defendant in June Medical Services LLC. v. Gee, the hotly watched upcoming Supreme Court case. The plaintiffs are challenging the constitutionality of a Louisiana state law that requires abortionists to hold admission privileges at a hospital within 30 miles of their clinic. In their brief, the amici asked the Court to craft a ruling that reaches beyond the merits of the case by clarifying the “undue burden” standard laid out in Hellerstedt and “tak[ing] up the issue of whether Roe [v. Wade] and [Planned Parenthood v.] Casey should be reconsidered and, if appropriate, overturned.”
The signatories are right to ask that both Roe and Casey be, at a minimum, “reconsidered.” Both are shoddy decisions, based on farcical interpretations of substantive due process and implied privacy rights found neither in the text nor in the original understanding of the Constitution. Just as the Court did to Plessy, Korematsu, Dred Scott, and the rest of the anti-canon, it should do to Roe and Casey — overturn them, and add both to that “set of cases whose central propositions all legitimate decisions must refute.”
Roe “is bad constitutional law,” one pro-choice legal scholar wrote, “because it is not constitutional law and gives almost no sense of an obligation to try to be.” Roe’s legal survival depends on the cooperation of Congress, which happily obliged by creating the ritual spectacle that is our modern judicial-confirmation process, during which pro-choice lawmakers attempt to wrestle a vow of obeisance to abortion-rights jurisprudence from all prospective federal judges. “Can you explain your understanding of stare decisis?” asks the inevitable progressive senator, whose deference to our common-law inheritance begins and ends in Anno Domini 1973.
Hardly is a reference made to the legal virtues of Roe itself, because, frankly, Roe and its jurisprudential progeny have none to offer. It was so tenuous on the constitutional merits that, in the words of National Constitution Center president Jeffrey Rosen, “the pro-choice majority asks nominees to swear allegiance to the decision without being able to identify an intelligible principle to support it.”
Defending the whims of seven activist judges from the 1970s against the patently reasonable suggestion that the people of the United States ought to make their own abortion laws necessarily portends the sort of hysterical reaction displayed in the response to the amicus brief. Congressional Democrats, celebrities, and the 2020 Democratic presidential candidates reacted with a predictable brew of panic and frenzy to the comparatively measured language of the brief.
Fledgling presidential candidate Elizabeth Warren, for instance, sent out a tweet insisting that “Republicans want to turn back the clock, outlaw abortion, and deny people reproductive health care — and they’re hoping the Supreme Court will back their radical play. We need to take back the Senate and pass federal laws protecting our reproductive rights.”
Warren invokes the possible passage of “federal laws” to protect “reproductive rights,” but it’s Roe that took the question out of Congress’s hands in the first place. Since Roe draws arbitrary boundaries around abortion restrictions for state legislatures without pretense of constitutional fealty, federal abortion laws can only move in Warren’s direction.
Everything about Warren’s language here is duplicitous. With due respect to “dilation and extraction,” no abortion-related euphemism more effectively obscures the reality it pretends to describe than “reproductive health care.” Abortion terminates the product of “reproduction,” and — for one of the two parties privy to the procedure — has nothing whatever to do with “health care.” Inducing the paralysis and subsequent mutilation of a fetus might well have a number of apt three-word descriptions, but “reproductive health care” is not one of them.
She also predictably evades the central question putatively answered by Roe: Whether penumbra buried deep in the Ninth and 14th Amendments contain an implied right to privacy, and whether that implied right to privacy, should it exist, permits women to snuff out the life in their wombs. Here she says nothing because there is nothing to say. For all of her talk about “turning back the clock” and “reproductive health care,” she is advancing the argument that the people should have no say in their abortion laws because seven high clerics of the Supreme Court once pretended to find a right to abortion that does not anywhere exist in the Constitution.
She could have been more forthright and said, “Shut up.”
Someone who would do well to take that advice, Alyssa Milano, told her Twitter followers: “Get ready to fight like hell, ladies and men who love them. Are you ready?! Roll Call! I’ll go first. Alyssa, Los Angeles, and I’m ready to fight for a woman’s right to choose her destiny. #roevswade”
I’ll go second: John, Manhattan, and I’m ready to fight for a child’s right not to be pumped full of potassium chloride by its mother.