In 1973, the Court invented a right to abortion that makes the U.S. an extreme outlier in the world. Now, it has a chance to undo that grievous wrong.
In 1973, the Court invented a right to abortion that makes the U.S. an extreme outlier in the world. Now, it has a chance to undo that grievous wrong.
O ut of nearly 200 nations in the world, just seven allow elective abortions after the 20th week of pregnancy. The United States is one of them, as are the brutal communist regimes of North Korea, Vietnam, and China.
One big reason why American abortion law is so extreme is the Supreme Court. In Roe v. Wade and the Casey decision that upheld Roe, the Court ruled that the U.S. Constitution prohibits state laws from protecting the life of an unborn baby at least until “viability” — that is, when the baby can survive outside the womb with or without artificial aid. (The ruling in Roe’s companion case, Doe v. Bolton, decreed that abortion must be legal after viability and until birth for a wide array of “health” reasons, including emotional health.)
Think about that for a second: In 1973, the Supreme Court held not only that the Constitution had contained a previously undiscovered right to kill a baby in utero for any reason since at least the ratification of the 14th Amendment in 1868, when 30 of 37 states legally prohibited abortion. The Court also held that that previously undiscovered right was more expansive than the legal right to abortion in almost any other country in the world.
What Casey called Roe’s “central holding” — the alleged constitutional right to elective abortion until viability — is now the issue before the Supreme Court in the Dobbs case, which involves a challenge to Mississippi’s 15-week limit on abortion. Oral arguments in the Dobbs case will be heard on Wednesday, and in the summer of 2022 the Supreme Court is expected to issue its ruling.
Why must states wait at least until viability, which is mostly a function of lung development, to protect a baby from lethal violence? Why not at 15 weeks of pregnancy, when, one maternity website notes, “Your baby” has “eyelids, eyebrows, eyelashes, nails, hair, and well-defined fingers and toes. If you could see inside your womb, you’d catch your baby sucking a thumb, yawning, stretching and making faces!” Why not twelve weeks, when it might be possible for a baby in the womb to feel pain? Why not six weeks, when a baby’s heartbeat is first detected, or conception, when a new life first comes into being?
* * *
When you look closely, there are several particular problems with the “viability” standard.
First, it is arbitrary. As Bob Woodward reported in 1989, the private papers of one Supreme Court justice revealed that Justice Harry A. Blackmun, author of the majority opinion in Roe, acknowledged in an internal court memo in 1972 that any line drawn by the Court would be “arbitrary.” In his initial draft of the Roe opinion, Blackmun drew the line at 13 weeks but was prodded by a colleague to move it to viability, which the final opinion did. As Clarke Forsythe writes in National Review, “The Court adopted the rule that states could not prohibit abortion before fetal viability even though viability was never mentioned once in two rounds of argument. No party or amicus urged the Court to adopt the viability rule.”
Roe and Casey could offer little more than circular logic to justify the viability standard. Casey declared that although “advances in neonatal care have advanced viability to a point somewhat earlier” in pregnancy, “the divergences from the factual premises of 1973 have no bearing on the validity of Roe’s central holding, that viability marks the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on non-therapeutic abortions. The soundness or unsoundness of that constitutional judgment in no sense turns on whether viability occurs at approximately 28 weeks, as was usual at the time of Roe, at 23 to 24 weeks, as it sometimes does today, or at some moment even slightly earlier in pregnancy, as it may if fetal respiratory capacity can somehow be enhanced in the future.”
The Souter-Kennedy-O’Connor majority opinion noted that “the viability line also has, as a practical matter, an element of fairness. In some broad sense it might be said that a woman who fails to act before viability has consented to the State’s intervention on behalf of the developing child.” But those sentences could have been written just easily about a 15-week limit as about the 23-to-24-week limit that actually resulted.
To put it a bit more plainly, the Supreme Court affirmed in Casey that a state may pass a law protecting the life of a baby with lungs strong enough to survive her stay in the hospital, but that the Constitution prohibits states from protecting babies with weaker lungs. Casey was merely reaffirming the circular logic presented in Roe. “Exactly why [viability] is the magic moment is not made clear,” wrote John Hart Ely, an eminent legal scholar who supported a right to abortion, in 1973. “The Court’s defense seems to mistake a definition for a syllogism.”
When I asked House Democrats this fall why the United States shouldn’t more closely follow the abortion laws of many European countries, none provided a good reason for the viability standard on the merits.
“I’m always reluctant to, you know, jettison American judgment in favor of foreigners’ ideas,” Democratic congressman Matt Cartwright of Pennsylvania said.
“The Constitution makes it clear: Until there’s viability . . . abortions are legal in our country,” California congresswoman Jackie Speier told NR. “We don’t compare ourselves to other countries. We have the American way.”
If circular logic is one problem with the viability standard, imprecision is another. The respondents’ brief opposing Mississippi’s 15-week limit in the Dobbs case states: “In fact, undisputed evidence here shows that viability has not moved—and instead has remained the same—since 1992, when this Court decided Casey. At that time, the Court noted that viability in a normally progressing pregnancy occurred at approximately 23 to 24 weeks, and that is where it remains today.” In fact, a baby born in Alabama last year at 21 weeks now holds the world record as the most premature baby to survive. (There are live births prior to 21 weeks, but no premature infant born that early has survived in the long term.) It is hard to determine with certainty whether any given baby in the womb born at 21 weeks of pregnancy or later — a patient whom doctors can only see via ultrasound prior to birth — will survive her stay in a neo-natal ICU; the prognosis is an educated guess based on statistics. States that would draw the line when an unborn child has a heartbeat detectable by a sonogram would thus legislate the clear standard that the Casey decision lacks.
A third problem created by drawing the line at viability is that the Supreme Court obviously created a conflict of interest for some of the researchers and scientists — and the governments and private businesses who fund them — pursuing moon-shot technologies that would move the viability line much closer to conception. Work on artificial wombs that may aid the lives of babies born as early as 23 weeks has continued since Casey, but doesn’t it stand to reason that so long as the Supreme Court’s viability line remains intact, some in the medical establishment will be reluctant to develop any technology in the coming decades that could move the viability line to, say, twelve weeks? Just imagine if the Supreme Court made any other fiercely contested right contingent on a life-saving technological innovation not happening.
* * *
Of course, when you zoom out from the question of the viability standard, the larger problem with the Court’s upholding a constitutional right to elective abortion is that the justices can only do so by first concluding that the life of the child is in some sense sub-human — merely a potential life and not an actual life. As Justice Scalia wrote in his Casey dissent: “The whole argument of abortion opponents is that what the Court calls the fetus and what others call the unborn child is a human life. Thus, whatever answer Roe came up with after conducting its ‘balancing’ is bound to be wrong, unless it is correct that the human fetus is in some critical sense merely potentially human.”
It is only after that value judgment has been made that the invocation of secondary concerns such as “reliance interests” as a reason to keep the wrongly established precedents of Roe and Casey intact makes any sense.
Yet whether the justices will do just that is the major unknown presented by the current Supreme Court. None of the five self-described originalist justices or Chief Justice John Roberts can possibly believe Roe was correctly decided. The only question is whether at least two of them will join the three liberals to uphold Roe and Casey — or invent some other arbitrary line beyond which states may not prohibit elective abortions — under the guise of stare decisis.
Will they?
In 2020, Justice Brett Kavanaugh, who is widely expected to be one of the decisive votes in Dobbs, offered in a concurrence in an unrelated case, Ramos v. Louisiana, a “roadmap for determining whether to overrule an erroneous constitutional precedent” — and that roadmap points strongly in the direction of overturning Roe and Casey.
Kavanaugh outlined “three broad considerations” that justices should take into account when they’re asked to overturn precedent instead of following the doctrine of stare decisis: (1) whether the decision was “grievously or egregiously wrong;” (2) whether the decision has “caused significant negative jurisprudential or real-world consequences;” and (3) whether overruling the prior decision would “unduly upset reliance interests.”
It is obvious that the Roe decision was “grievously or egregiously wrong” as a constitutional matter: There’s nothing in the text of the Constitution or history to suggest a right to abortion is protected by the 14th Amendment. A simple look at the death toll from abortion since 1973 proves that Roe has also “caused significant negative . . . real-world consequences.” But the third question — whether overruling Roe would “unduly upset reliance interests” — is more complicated and worth dwelling on at greater length.
The Souter-O’Connor-Kennedy concept of “reliance” had more to do with sociology and psychology than it did with legal jurisprudence. “Casey acknowledged that traditional considerations of reliance had little force in this context because ‘reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions,’” Notre Dame law professor Richard Garnett and former assistant attorney general Charles J. Cooper write in their amicus brief in Dobbs.
Here’s what the Souter-Kennedy-O’Connor opinion said about reliance:
For two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.
In 2021, of course, there are several methods of birth control that are more than 99 percent effective, and the Affordable Care Act of 2010 mandates that all FDA-approved female contraceptives must be covered by insurers with no copay.
One remarkable aspect of the above excerpt from the Souter-Kennedy-O’Connor opinion is that it presents only two options for a woman experiencing an unwanted or unexpected pregnancy: Abort the child or raise the child. A third option — placing the child up for adoption — never really enters the picture even though it is available to 100 percent of pregnant women.
Adoption also never enters the discussion of reliance interests in the respondents’ brief in Dobbs: “Consider just one person’s reflection in a brief to the Court: ‘Becoming a first-generation professional would have been impossible without access to safe and legal abortion services.’” As Erika Bachiochi writes in National Review, Roe and Casey themselves create expectations that make life more difficult for working mothers: “Rather than challenge workplace norms head-on, the decades-long quest for unfettered abortion feeds into the model of the ideal male worker who is beholden to no one but his boss. If abortion is what enables women to participate in the workplace, then perhaps costly accommodations, flexible work schedules, and part-time-pay equity are not so necessary.” Many millions of women have had successful careers while raising children, including children born following unexpected pregnancies. But the point remains that adoption is always an option for any particular woman facing an unexpected pregnancy who does not want to raise the child for any reason.
And of course it is a simple fact that ending Roe would not end access to abortion in the United States. Some states would generally prohibit abortion, some states would maintain or establish an expansive right to abortion, and others would place greater limits on it while keeping it generally legal. If Roe were overturned, research indicates that additional legal hurdles to abortion would lead to a decrease in the abortion rate of about 13 percent — roughly 100,000 fewer abortions per year.
“Even if contested, constitutional rights that have ‘become embedded’ in ‘our national culture’ are entitled to heightened stare decisis effect,” the respondents’ brief in Dobbs argues. But it can’t possibly be the case that simply because swathes of society “rely” in some broad sense on a grievously wrong and harmful precedent, that precedent should be preserved. The Supreme Court gave its blessing to segregation in 1896. By 1954, many states had been living under de jure segregation for many decades, and millions of white parents had strong expectations that they could send their children to segregated schools. As Garnett and Cooper write in their amicus brief:
No doubt “economic and social developments” premised on the continued lawfulness of race-based segregation took place in the 58 years between Plessy v. Ferguson (1896), and Brown v. Board of Education of Topeka (1954); and no doubt many white southerners “made choices that define[d] their views of themselves and their places in society” based on the institution. But that did not give the Brown Court any pause before restoring the Fourteenth Amendment’s promise of equal protection.
Brown v. Board did not end racism, nor did it immediately usher in an era of racial harmony. It was in fact followed by a period of social and political unrest. But segregation was a grave constitutional and moral injustice, and Brown was necessary for the United States to become a more just, decent, and humane society. In Kavanaugh’s 2020 Ramos concurrence, he wrote that when the justices look at reliance interests, they should focus on the “legitimate expectations of those who have reasonably relied on the precedent,” but in that same opinion he called Brown v. Board “the single most important and greatest decision in this Court’s history.” If Kavanaugh follows the logic of his own roadmap, it’s hard to see how he can help but arrive at the conclusion that Roe and Casey should be overturned.
There’s been much speculation that Kavanaugh and Chief Justice Roberts may try to find a way to uphold the Mississippi law without fully overturning Roe and Casey and restoring the right of states to limit or prohibit abortion. But it is very difficult to see how the Court could discard the arbitrary and judicially invented right to abortion until viability in favor of some other arbitrary and judicially invented right to abortion.
* * *
Unless, that is, the justices let fear of a fierce political backlash cloud their judgment.
Supreme Court justices are not supposed to think or act like political hacks who act with an eye on how their rulings could influence congressional and presidential elections, but many of those who say the Court would risk its “legitimacy” by overturning Roe are really just saying that there would be political backlash to such a decision.
Some Democrats have raised the stakes by threatening to pack the Court, but there are many good reasons that the threat of Court-packing is empty, and should not influence Roberts, Kavanaugh, or any other justice, including the following:
- There are no circumstances in which the two key moderate Senate Democrats — Joe Manchin of West Virginia, who is pro-life, and Kyrsten Sinema of Arizona — will vote to abolish the filibuster, which would be necessary to pack the Court.
- It’s hard to predict the future, but since September 1, Texas, the second-most-populous state in the country, has effectively banned abortion later than six weeks of pregnancy, through a law whose unusual enforcement mechanism (civil lawsuits) was designed to help it evade pre-enforcement challenges. The Texas abortion law hasn’t been the most divisive political issue in the country — pandemic policy and the Afghanistan withdrawal have both been more polarizing — nor even in Texas, where the migrant surge along the border has drawn headlines.
- In November, two months after Texas’s law took effect, the Democrats faced a nationwide political backlash. Virginia, a state President Biden carried by ten points against Donald Trump, elected a Republican governor by two points over Democrat Terry McAuliffe, who had made Roe and abortion a centerpiece of his campaign. In Texas, a house district that Biden carried by 14 points elected a Republican by two points.
- A political backlash against Republicans in 2022 is possible, of course, but on the off chance that Democrats manage to hold the House and make gains in the Senate next year, there are Senate Democrats in addition to Manchin and Sinema who have said that they will not pack the Court even if Roe is overturned. Indeed, if the goal is putting an abortion right beyond the reach of legislatures, packing the Court would be a foolish and counterproductive response from abortion supporters. It would guarantee that Republicans would respond in kind the next time they control Congress and the White House. If Democrats control the House and have the votes to kill the filibuster in the Senate, a rational response would simply be to pass a federal law enshrining an expansive right to abortion.
- Most elected Democrats know that Court-packing is not only irrational, but politically poisonous. That’s why President Biden’s commission threw cold water on the idea, and why there are only two Democrats in the Senate co-sponsoring a Court-packing bill.
If anything, the possibility of a political backlash is yet another reason to feel comfortable with overturning Roe. If the Supreme Court rules in the summer of 2022 that states have the authority to pass laws banning elective abortions and any state passes a law that goes beyond what public opinion will sustain, then voters will have recourse just a few months later to elect new state legislators and (in 36 states) new governors.
If Roe is overturned, it will not be the end of the world, the country, or the Supreme Court. It will not be the end of abortion, either. It will simply be the end of a string of grievously wrong and harmful Supreme Court precedents. Life — and the pro-life fight — will go on.