Bench Memos

Law & the Courts

Judge Thapar’s Persuasive Case against Roe

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Judge Amul Thapar has written another strong judicial opinion, this time in reaction to the Sixth Circuit’s ruling in an abortion case decided Friday. The panel opinion in Memphis Center for Reproductive Health v. Slatery struck down two Tennessee abortion restrictions — one applying when a fetal heartbeat is detected, the other when the doctor knows an abortion is sought because of race, sex, or a Down-syndrome diagnosis of a fetus. Thapar did not join the court’s opinion, instead issuing a partial dissent that took on the Supreme Court’s abortion jurisprudence head on.

Thapar acknowledged that Roe v. Wade and Planned Parenthood v. Casey compelled the outcome regarding the heartbeat provision because it applied before viability, but he asserted up front that both “Roe and Casey are wrong as a matter of constitutional text, structure, and history.” He spent the bulk of his 35-page opinion explaining why.

First, the text:

​​No one, including the Roe majority, contends that such a right exists in the text of the Articles of the Constitution. Instead, jurists and commentators point to the Bill of Rights or the Fourteenth Amendment. But you won’t find the word “abortion” (or any equivalent) there either. Indeed, many thoughtful legal scholars, including those who support abortion as a policy matter, have expressed skepticism of or outright hostility to the idea that the Constitution explicitly provides a right to abortion. The text does not bear it out. [footnote omitted]

A right can be discerned when it is “deeply rooted” in our “history, legal traditions, and practices,” but “this is a tough test to pass. And rightly so. After all, when the judiciary recognizes a new right, we take the decision away from the American people. The Roe majority claimed that a right to abortion easily clears that high hurdle. But in doing so, it rewrote history.” Of course abortion has no such historical pedigree, and the Roe majority’s reliance on “suspect sources” plagued by “historical errors” to try to establish otherwise “is just one of many reasons why historians and jurists have roundly criticized Roe’s historical foundations since the day it came down.”

Thapar buttressed his point with this gem in one of his footnotes referencing other sources that demolished Roe’s history:

I am aware that the Roe majority offered a fleet of additional historical arguments ranging from the views of the Persians and ancient Greeks on abortion to the Hippocratic Oath. But at some point, I must follow the mercy rule for the sake of both Roe and the reader. Gluttons for punishment can look elsewhere for a more thorough demolition of Roe’s historical foundations.

Not only was there no affirmative right to abortion in early America, but

almost every state and territory had in fact passed laws limiting or prohibiting abortion by the end of the nineteenth century. By contrast, the Roe majority did not provide a single example of a state that legally guaranteed an affirmative right to abortion at either the time of the Founding or during the Reconstruction Era. That silence is not just deafening. It should end the debate.

Under any test for evaluating the historical pedigree of an alleged right, the right to an abortion does not just miss the mark. It flunks out.

For good measure, Thapar took on living constitutionalism with a call for some judicial humility, quoting Edmund Burke:

I would not take the living constitutional route. Dismissing our constitutional text and history—as the Casey plurality did—is never wise. After all, we must remember that because “the private stock of reason . . . in each man is small, . . . individuals would do better to avail themselves of the general bank and capital of nations and of ages.”

He proceeded to eviscerate Casey’s hopelessly unworkable undue-burden standard:

What constitutes an “undue burden”? How about a “substantial” obstacle? What’s a large fraction? How do you calculate the denominator? What about the numerator? How do we balance a state’s interests in preventing fetal pain, safeguarding the unborn child’s life, and preserving the integrity of its medical profession with a woman’s interest in obtaining an abortion? Should we update the undue burden test as neonatal science teaches us new things? How do you know if a law prohibited a woman from obtaining an abortion or merely persuaded her to choose life? And how can we divine future consequences from pre-enforcement challenges? Each of these questions—and there are many more—layers discretion upon discretion. Put any three judges on a panel and you could get three different—and equally reasonable—answers for each question.

The undue burden test is “hopelessly unworkable in practice.” And it is unworkable because it is neither a clear rule nor a judicially manageable standard. The test has the added vice of being untethered from constitutional or statutory text. Instead, it takes judges out of our Article III role and makes us answer questions better left in the hands of legislatures. The Founders understood the danger of this. So should we. [citations omitted]

Thapar appealed to the Supreme Court to do what he as a circuit judge could not:

Only the Supreme Court can tow our jurisprudence back to the safe harbor of democratic legitimacy. . . .

Justice Holmes once remarked that “a page of history is worth a volume of logic.” The argument that the Constitution contains a right to abortion has neither. As shown above, the historical evidence is clear. The Constitution leaves decisions like this to the states. The state legislatures can do what we can’t: listen to the community, create fact-specific rules with appropriate exceptions, gather more evidence, and update their laws if things don’t work properly. And if the public is unhappy, it can fight back at the ballot box. The courts should return this choice to the American people—where it belongs. [citation omitted]

Thapar is exactly right that Roe and Casey are wrong as a “matter of constitutional text, structure, and history.” I applaud his thoughtful and well-reasoned opinion explaining just how very harmful it has been to our republic and the Court’s own integrity for the “manufacture[d] right to abortion” of Roe and Casey to move the “policy debates from the country to the courtroom.”

Kudos to him for having the courage to say out loud what most federal judges know well but dare not say.


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