What if the Supreme Court revisits Roe v. Wade?

For over half a century now, overturning Roe v. Wade has been the Holy Grail of the religious right. In the interim, religion-driven rightwing fanatics have bombed and torched abortion clinics, murdered abortion doctors, and harassed abortion clinic workers and patients in God’s name. I have no idea how God feels about this; that’s way above my pay grade. But down here, at my lowly level, these activities don’t seem to square with the teachings of the Christian Bible.

As a lawyer, I’m predisposed to believe that disputes should be settled in the courts under our laws. That’s what we have a legal system for. The presumed advantage of a legal system is that it’s a better method of dispute resolution than walking on coals or shedding blood. But the efficacy and value of any legal system depends on people’s willingness to use it and abide by its decisions.

I don’t have a problem with abortion opponents wanting the Supreme Court to revisit Roe v. Wade. In our system of constitutional government, and the legal system established under it, using the court system is a legitimate way to effect social change. Over the last two-plus centuries, since its founding, this whole system has worked better — and served us better — because of the flexibility built into it to reconsider even firmly established precedents. We should not forget that flexibility made possible replacing Plessy v. Ferguson with Brown v. Board of Education, the decision that abandoned the legal doctrine that accepted segregation and transformed our society by opening the door to the Civil Rights Movement.

I’ve read the complete opinion in Roe v. Wade several times, and while I’m not a constitutional law scholar, I’ve formed my own impression of it. The opinion has two parts. The first part finds that while the Constitution and Bill of Rights do not expressly create a right of privacy, nevertheless such a right is necessarily implied from the other rights it creates. This part of the opinion is tightly reasoned and, as lawyers say, hangs together well.

The second part concludes that the constitutional right of privacy includes a right to have an abortion. This result is to some extent an extension of the Court’s earlier decision in Griswold v. Connecticut, which struck down a state’s attempt to prohibit contraception, a law that as a practical matter could be enforced only by empowering the police to enter people’s homes and search their bedrooms for condoms or other contraceptive devices. It’s easy to see why the Court balked at such extreme invasions of privacy, although there are people today who still want such laws reinstated.

Because the Court based the abortion right on a concept individual privacy, in fleshing out the Roe v. Wade ruling in subsequent decisions, it ruled the decision to have an abortion was the woman’s alone, and prospective fathers and parents of minor mothers aren’t entitled to any say in that decision, as that would interfere with her ability to do whatever she wants with her own body.

The reasoning behind both the basic abortion right and these later decisions necessarily rests on the factual premise that a fetus is not a human being, has no constitutional rights, and no due process procedure is required to terminate its existence.

Opposition to Roe v. Wade is based on the notion that a fetus is a separate human being with rights from the moment of conception. Many abortion opponents deem abortion murder and speak of it in those terms. The Roe v. Wade court rejected that view, but did struggle with the distinction between a fetus and a human being. After examining it from scientific, religious, philosophical, and other viewpoints, it settled on life independent of the mother’s body — practically speaking, the moment of birth — as the dividing line between fetus and human being. But recognizing it’s somewhat of a gray area, the Court left wiggle room for imposing more restrictions on abortion as pregnancy advances. As the years have gone by, the Court has tended to accept a greater array and degree of restrictions, so the post-Roe v. Wade momentum has been away from complete freedom to get an abortion. Some states, including Washington, have countered this by enacting abortion rights laws.

I’ve always felt the second part of the Roe v. Wade opinion is less compelling than the first part establishing the privacy right. This was inevitable given the impossibility of drawing a bright line between a cell mass and the complex organism that is a sentient human being. It’s impossible because the transformation of a fertilized into a person is gradual and lacks a single defining characteristic. The Roe v. Wade court did the best it could with this quandary, and what it came up with is both persuasive and defensible, but I wouldn’t call either their factual premises or their logic are airtight and unassailable.

When you get right down to it, the Court in Roe v. Wade took a practical approach to solving a vexing social problem. Prior to Roe v. Wade, abortion was illegal in the United States, but many women were getting abortions anyway. These abortions often were unsafe, and resulted in many deaths. It was widely understood that criminalizing abortion didn’t stop it, and legalizing abortion made it safer and saved lives. This was an important factor, although certainly not the only factor, that swayed the Court to make the decision it did. Opposition to abortion, by contrast, usually is driven by religious beliefs and/or ideology without regard for such practical considerations.

Not surprisingly, most of the public has embraced legal abortion. Polls taken over the ensuring years have shown that a very consistent 70% of the population thinks abortion should be legal. Opponents are definitely a minority. But they are a very vocal minority.

Today, the great hope of abortion opponents is that Trump’s appointments to the Court and its new conservative majority have tipped the balance against Roe v. Wade and the Court will now revisit and overturn this precedent, just as the Plessy v. Ferguson in 1898 was overturned a little over a half century later by Brown v. Board of Education in 1954 — this example is often cited to point out there is historical precedent for such reversals.

But I’m not so sure this Court will do that. Precedent exerts a strong influence on judges of all political stripes. Law students are indoctrinated with the force of precedent, and lawyers spend their careers crafting arguments based on precedents. Precedent can be challenged, of course, but not willy-nilly. One must craft a persuasive argument that either the court that established the precedent made a mistake, or something has changed in society to justify a new judicial policy on the subject. Supreme Court justices, of course, have a great deal of leeway to alter precedent; after all, they’re the final arbiters of precedent. But even the Supreme Court puts great store by established precedent, so it’s not a given that the switch from a swing court to one with a conservative majority makes a Roe v. Wade overturn inevitable.

We may find out soon. GOP-controlled legislatures are rushing to pass laws which are blatantly unconstitutional under Roe v. Wade. These laws undoubtedly will be invalidated by federal district judges, who have no authority to overturn or rewrite Supreme Court precedents, and their decisions will be affirmed by federal appeals courts because that’s how the system works. Only the Supreme Court has authority to upset the Roe v. Wade applecart.

It’s worth mentioning that the legislators enacting these laws are almost exclusively white men; and if the Supreme Court overturns or substantially limits the rights created by Roe v. Wade, it’s almost certain all of the Justices voting to do so will be male. That won’t necessarily stop them, but the absence of female support for their position — either on the Court or in the country at large — may give them pause and impel them to seek a middle ground.

At the threshold, the Supreme Court likely will do one of two things: Either decline to accept an abortion case, or combine several cases into a single case for review. The Court then will have several options:

  1. The Court might simply reaffirm its previous holdings.
  2. The Court might retain the basic Roe v. Wade right to abortion, but tweak it in some way, for example by allowing states to impose more restrictions.
  3. The Court might redraw the line of when a fetus becomes a human being, opening the way for states to prohibit abortion after a certain number of weeks, but preserving the right to an abortion before that date.
  4. The Court might say Roe v. Wade was wrongly decided and overturn it, allowing states to prohibit all abortions.
  5. The Court might say a fetus has an independent right to life and is entitled to due process before its life is terminated, which result in a general prohibition of abortion without any state action, and overturn existing state laws creating abortion rights, while still leaving some room for judges to allow abortions in certain limited circumstances, such as when necessary to save the life of the mother.

My guess is there’s at least a couple votes on the Supreme Court for Option 5 above, but I suspect Chief Justice Roberts would be reluctant to go along with such a drastic revision of abortion law, especially given the high likelihood that a decision of that nature would be met with widespread civil disobedience and weaken public support for the Court and judicial institutions in general. After all, Roberts declined to invalidate Obamacare. He might, however, go along with giving states more leeway to restrict abortions.

Thus, I think we’re more likely to get a compromise of sorts, if the Court decides to take on this issue. Leaving it up to the states is probably the worst-case scenario that pro-choice advocates are facing, but I think a decision that leaves Roe v. Wade mostly intact accepts more restrictive laws than existing ones is more likely than a decision preserving the status quo. I don’t think the Court would accept an abortion case if it didn’t intend to make some changes to existing abortion law.

But I don’t know, and we’ll just have to wait and see what happens.

Meanwhile, if the Court does decide to revisit Roe v. Wade, a key thing to watch is whether it will limit itself to the abortion issue, or also revisit the implied constitutional right of privacy created by the original Roe v. Wade decision. Remember, the word “privacy” does not appear in the Constitution or Bill of Rights; your privacy rights depend entirely on the first part of Roe v. Wade. If the entire decision, and not just the abortion part, gets thrown out that would open the door to a surveillance state.

0 Comments Add Yours ↓

  1. Mark Adans #

    Roger Rabbits post is pretty good, but skips over the fact that this is as much a political issue than a legal question. If it were merely legal then Roe V. Wade would have settled the matter. Anti Abortion advocates do have an argument that the normal process of law was skipped over by the Supreme Court gutting the laws of 2/3rd of states. Yes abortion had become legal in 1/3 of states and that is really what got the US on the path to Roe V. Wade. See below:

    Of course if individual state courts were to actually uphold their individual state constitution then many state courts would have found a woman has a right to an abortion. Perhaps even a US territory would have found infanticide legal (it was customary in many Pacific Island communities in times of food shortage). Perhaps the issue with State Supreme Courts is that their judges are elected.

    Abortion is not an issue our system has dealt with well. At the time of creation. Abortion was legal. After the great awakening and before the civil war most states made abortion illegal. Though it never really stuck in any practical sense, and those with resources always had abortion as an option. Sucked to be a poor girl and especially a poor pregnant girl in these United States, and still does to some extent.

    The fact that illegal abortions were performed hundreds of thousands of times safely and with less risk to the mother than the birth going to term should resolve the matter. The fact that we now have a morning after pill, used often up to weeks after conception overlooks a change since Roe. Also the pill is a change, but the pill is somewhat as reliant on Roe as earlier decisions on contraceptives.

    Roe did give Congress a cover to do nothing. Which is what it has done. Nothing has stopped Congress from passing legislation legalizing abortion or a constitutional amendment. Sorry states if the court can say corn or marijuana that would never leave a state is still part of interstate trade same applies to abortion providers.

    Of course these new state laws are clever in they go after the doctor rather than the woman criminally.

    And Roger Rabbit leaves out the possibility of the courts being ok with infanticide should a majority of Americans bring back the Viking/Roman test of the sword. Bring back that old time religion!

  2. Mark Adans #

    One thing the anti abortionists overlook is that they are making a Faustian bargain with the state. They essentially saying the state has the power to do this, That implicitly means that the states of Alabama and Missouri have the power to tell women they will have an abortion. While abortion is illegal in much of the world it is legal in communist China, and women there have been and are told by the state you will have an abortion.

  3. Mark Adans #

    I think the court is a justice short of any real possibility of overturning Roe so much likely will be a declination to review, unless an Appeals Court upholds a states law banning abortion

  4. Roger Rabbit #

    I also think the Court is a justice short of overturning Roe. I do not believe Roberts will go along with that. There will not be an Appeals Court ruling upholding a state law banning abortion because the Appeals Courts are bound by the Roe precedent.

Your Comment