The Fourth-Best Reason to Overturn Roe

Sign at the March for Life rally in Washington, D.C., in 2011. (Jason Reed/Reuters)
The ‘workability’ argument enjoys its 15 minutes of fame.

NRPLUS MEMBER ARTICLE T wo hundred–plus members of Congress, all but two of them Republicans, have signed a brief to the Supreme Court regarding June Medical Services v. Gee. The case involves a Louisiana law requiring abortion doctors to have admitting privileges at a nearby hospital, a policy similar to a Texas one the Court struck down in 2016. The Court might address the situation with a scalpel, or it might take the opportunity to reconsider its abortion jurisprudence more broadly.

A lot of the brief consists of the boring legal argumentation you’d probably expect. It encourages the Court to find that the plaintiffs lack standing or, failing that, to uphold the Louisiana law as “distinguishable” from the invalidated Texas one. But then it suggests the Court give some thought to reworking or overruling the decisions, most prominently Roe v. Wade and Planned Parenthood v. Casey, that treat abortion as a constitutional right to begin with. Why? The answer is a little unexpected: The right to abortion just isn’t “workable,” as evidenced by the courts’ failure to create a stable and logical system for determining which abortion restrictions are constitutional and which are not.

Unsurprisingly, the brief has divided legal commentators. Mark Joseph Stern of Slate calls the argument a “trick” and a “lie” that may well give conservative justices, in particular Brett Kavanaugh, the excuse they need to depart from judicial precedents that have actually worked just fine for nearly half a century. NR’s own Ramesh Ponnuru, writing at Bloomberg Opinion, says the brief makes a strong argument that “could eventually prove decisive,” perhaps in a future case rather than in June Medical Services itself.

I see this a bit differently. It is difficult to create workable standards in this area, but that doesn’t really distinguish abortion from countless other areas in which the Court operates, and I’m not sure how big of a role it will or should play in Roe‘s demise. If there really were a constitutional right to abortion, or if the core of Roe were worth upholding as precedent for other reasons, such as maintaining the stability of the law, it would be worth continuing to develop and improve the rules rather than ending judicial enforcement of the abortion right itself. (The central guideline since 1992 has been that states can’t place an “undue burden” on women seeking abortions, a vague standard that leaves plenty of room for refinement.) We who want to see the end of Roe should thus not put too many eggs in the “workability” basket, and there are plenty of arguments worth emphasizing more.

To be clear, there is a workability problem, at least regarding the Court’s approach to the abortion issue up until now. Here’s the GOP brief describing the Court’s various ping-pong moves over the years:

The Court struck down regulations in Akron and Thornburgh later approved in Casey. The Court identified two state interests for abortion regulations in Roe but recognized more in Gonzales. It struck down limits on partial-birth abortion in Stenberg v. Carhart later approved in Gonzales. It rejected facial challenges in Gonzales it then resurrected, sua sponte, in Hellerstedt. The Court has retreated from Roe in at least four cases — Harris, Webster v. Reproductive Health Services, Casey, and Gonzales — recalibrating the standard of review and giving States more deference to enact health and safety regulations and partial prohibitions.

These flip-flops, as well as the conflicting abortion decisions that routinely issue from the lower courts as they try to parse confusing Supreme Court precedents, show the difficulty of separating limits on a right that are allowed from limits that are not allowed — especially when different jurists have different ideological commitments regarding the right, and when many states are willing to get creative to limit the right any way they can. But this problem is present to some degree with any right, whether guaranteed by the Constitution, a statute, or a judicial precedent, and we rarely see it as a reason to rethink whether courts should enforce such rights at all.

There’s no argument in the brief that abortion rights are any harder for courts to manage than, say, gun rights, another area where the Court’s standards are still young and evolving and judges disagree on whether the right should exist at all. And while the Court has wavered on the ways in which states may restrict abortion on the margins, it has been rock-solid on the core question: whether a woman has a right to abort her child in the early months of pregnancy, which is when the vast majority of abortions occur.

So while it is indeed challenging to create workable rules for abortion regulations, I’d call that the fourth-best reason to strike at the heart of Roe itself. My top three have to do with whether the decision was correct to begin with and, if not, other concerns bearing on whether it’s the kind of precedent the courts should respect anyway.

First, there really is nothing in the Constitution stopping states from regulating abortion as they see fit, so this is not an issue for the federal courts to resolve permanently the way they tried to in Roe. Second, this decision to override voters’ policy preferences has been highly consequential — and horrific, to those of us who oppose abortion — as Roe has facilitated the deaths of millions of helpless babies in jurisdictions that would have strictly limited the practice if they’d been allowed to. Third, unlike many other un-originalist precedents from decades past, Roe has failed to settle into place as a widely accepted and politically unremarkable part of our legal landscape, and it generates vigorous protests nearly 50 years after it was decided. States and even judges on the lower courts are pushing the boundaries on abortion laws to this day.

You might disagree with my ranking. Heck, I stole three of the four elements from the late Justice Antonin Scalia’s list of criteria for overruling precedents, and he did: “1. How wrong was it? . . . 2. How well accepted has it been? . . . 3. Most important to me, does it permit me to function as a lawyer, or does it make me a legislator?” (Emphasis mine.) In explaining the third part, Scalia specifically called out the “undue burden” standard for abortion laws.

But however we order these various tests, Roe flunks all of them. Combined, they amount to an incredibly powerful case for overruling a bad precedent that has lasted too long, claimed too many lives, taken too much power from the states, and sown too much discord by denying abortion opponents a fair chance to make a difference through the legislative process. Above all, the Court should end it, and soon — no matter which reasons it finds most compelling.

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