Law & the Courts

Abortion Change Won’t Come until the Supreme Court Abandons Roe v. Wade

Anti-abortion marchers rally at the Supreme Court during the 46th annual March for Life in Washington, D.C., January 18, 2019. (Joshua Roberts/Reuters)
The Court’s justification for blocking anti-abortion state legislation rests on shaky grounds and ignores common-sense constitutional interpretation.

Pro-abortion activists are sure to be celebrating the Supreme Court’s decision this morning in June Medical Services v. Russo to strike down Louisiana’s recent abortion law, the Court’s first major decision regarding abortion since the appointment of Justices Kavanaugh and Gorsuch to the bench. To the casual observer, this case may seem to have been a matter of nine justices expressing their whimsical views on Louisiana’s mandate that abortionists enjoy admitting privileges at nearby hospitals. And admittedly, it is easy to get caught up in the semantics of accessibility, undue regulatory burdens, the quality of medical care, the enforceability of the statute, etc., as the Court itself did throughout its deliberations. But these are superficial questions. Ultimately, the Court’s abortion-related decisions are mostly deeply affected by whether the precedents established by Roe v. Wade and reimagined in terms of viability by Planned Parenthood v. Casey are taken seriously. As long as these precedents are held to be untouchable, there is only so much maneuvering the Court can do on cases like the Louisiana one — even as new scientific considerations come to light regarding the humanity of fetuses. Indeed, Chief Justice Roberts cited the precedent of the Court’s 2016 decision in Whole Woman’s Health v. Hellerstedt as he sided with the Court’s liberal wing today. However, the Court has another option: to revisit — and perhaps even to overturn — Roe v. Wade in future abortion cases.

A challenge to the famous 1973 verdict has long been thought to be without the realm of possibility, but the notion has gained momentum in recent years. In 2016, Donald Trump boldly ran on an anti-Roe platform, promising to appoint justices who would overturn the case (subsequently, Trump’s appointees made sure to sing the customary praises of precedent in their confirmation hearings). In January, 200 members of Congress urged the Court to use June Medical as a chance to revisit Roe v. Wade. And it is for the very purpose of challenging Roe v. Wade that pro-life state legislatures such as those in Alabama have put forth strong anti-abortion measures within the last few years. None of this would matter if the Supreme Court were entirely unwilling ever to flout stare decisis; on the contrary, the Court has recently rejected the four-decade-long precedents of Nevada v. Hall (concerning state-on-state litigation) and Apodaca v. Oregon (concerning juror unanimity for state-court felony convictions). This indicates that the body is open to breaking from tradition when it feels that the circumstances sufficiently warrant it. Practically speaking, a departure from judicial precedent is feasible in the case of Roe v. Wade: Justices Thomas, Alito, Kavanaugh, Gorsuch, and Roberts have all expressed, to varying degrees, skepticism of pro-abortion laws and rulings in past legal cases. And while Roberts has proven to be the least reliable skeptic of the five, the events of 2016 taught us that the Court’s composition can change on a whim — a surprise reelection of President Trump, and the subsequent appointment of a justice to the right of an exiting Breyer or Ginsburg, is not inconceivable. But it must also come to be understood why reconsidering Roe v. Wade is justified, lest this endeavor be reckoned nothing more than a political power move.

There are several reasons why Roe v. Wade merits reconsideration. For one, the majority opinion of the Court for this case in 1973 used several historical arguments completely unrelated to the United States Constitution to justify its verdict. These arguments, intended to discredit the “relatively recent vintage” of anti-abortion laws, were directly contrary to Justice Harry Blackmun’s claim in the decision that the Justices had resolved the issue solely by “constitutional measurement,” and that no emotion or political bias had factored into their decision. Justice Blackmun made several references to the abortion policies of ancient governments, such as: “Abortion was practiced in Greek times as well as in the Roman Era . . . it was resorted to without scruple.” Also: “The Ephesian, Soranos . . . found it necessary to think first of the life of the mother, and he resorted to abortion when . . . he felt the procedure advisable.” Consider, too: “There has always been strong support for the view that life does not begin until live birth” and, “Ancient religion did not bar abortion.” Legally speaking, it is hard to see how any of these arguments help to justify the Court’s verdict, and their inclusion in the Supreme Court majority opinion in defense of the legalization of abortion demonstrates that they may have made an observable impact on the Supreme Court’s social policy. This is simply unacceptable, considering that the Constitution and judicial precedents are meant to be the sole references for Supreme Court Justices in their verdicts. The use of ancient morality to justify a supposedly constitutionally based decision is certainly cause for at least a reevaluation of the case, especially considering that Blackmun’s historical claims were shaky even on their own terms.

Of course, the Court also employed constitutional considerations; these, too, were deeply flawed. Indeed, many constitutional lawyers — among them, Yale Law School professor John Hart Ely and Supreme Court Justice Antonin Scalia — have pointed out that the Supreme Court, in overruling state and local regulations of abortion through Roe v. Wade, engaged in social engineering outside of the power granted to the judicial branch by the U.S. Constitution. Let us see why: The Court claimed, in line with precedent dating back to 1891, that the Constitution gives an implicit “guarantee of certain areas or zones of privacy.” Past judicial rulings had found such a right hidden within the First, Fourth, Fifth, and Ninth Amendments; the Supreme Court, on the other hand, pointed to the 14th Amendment as the source of this right for the purposes of Roe v. Wade. However, this amendment makes no mention of privacy, let alone abortion:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

This section of the 14th Amendment is often cited in court, and for good reason: It is a chief preventer of governmental tyranny or of injustice in the administration of the criminal-justice system. However, the Supreme Court’s interpretation of “equal protection under the law” as justification for the legalization of the surgical murder of a fetus has mystified legal scholars for decades since the ruling. The idea that laws enacted to protect unborn children are somehow discriminatory against pregnant women and violate their equal protection under the law is greatly misguided. For although one may be entitled to any number of rights and privileges, these are commonly held to end where another’s begin; none would condemn laws protecting civilians from violence as being discriminatory against those who would wish to enact such violence. Only by forming their own judgment, independent of constitutional tradition, that fetuses are property could the Court have decided that the 14th Amendment is applicable to the issue of abortion.

Scalia refutes the Court’s reasoning: “The Constitution, in fact, says nothing at all about [abortion]. It is left to democratic choice.” Indeed, the Constitution’s Tenth Amendment allows all power not explicitly granted to the federal government (such as the regulation of abortion) to fall to the states. It is greatly revealing of the personal ideology of many of the Court’s justices that they have ignored this explicit constitutional directive while embracing one entirely manufactured by the Court.

In short, the Court’s justification for blocking anti-abortion state legislation rests on shaky grounds and ignores common-sense constitutional interpretation. And if the precedent of any case merits being scorned — something which should be done rarely and with the utmost caution — it is the precedent of Roe v. Wade. So rather than being viewed as successful efforts to uphold well-formed precedent, the rulings of Planned Parenthood v. Casey and of today should be seen for what they are: in line with a precedent that rests on an unacceptably flimsy foundation. There are sure to be new abortion cases before the Supreme Court, and Roberts may decide to again employ stare decisis to punt the question of abortion back even further. But the issue won’t really be put to rest until enough justices decide to abandon the precedent of Roe v. Wade — or to succumb to its mandates permanently.

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