The Court’s Historic Moment (Part 2)

The U.S. Supreme Court building in Washington, D.C., July 2, 2020 (Jonathan Ernst/Reuters)

With no sound constitutionalist basis for Roe or Casey on their own terms, the only serious argument left for an originalist to consider in Dobbs is stare decisis. Should the abortion precedents be left to stand even though they are, to use Justice Kavanaugh’s phrase in his concurring opinion in Ramos v. Louisiana, “grievously or egregiously wrong”? Of course not. It is axiomatic and often repeated by the Supreme Court that stare decisis is not and has never been an “inexorable command.”

Kavanaugh’s Ramos concurrence listed 30 examples of the Court’s “most notable and consequential decisions” that “entailed overruling precedent.” The list includes what Kavanaugh called “the single most important and greatest decision in this Court’s history,” Brown v. Board of Education (1954), which famously overruled the “separate but equal” doctrine of Plessy v. Ferguson (1896). Interestingly, his list also includes Casey itself. In that case, the Court not only rejected Roe’s trimester framework, but overruled two other abortion precedents that followed Roe — Akron v. Akron Center for Reproductive Health (1983) and Thornburgh v. American College of Obstetricians and Gynecologists (1986). Those two precedents entailed a full reaffirmation of Roe. Casey entailed a half-baked ruling under the guise of a partial upholding of Roe. Neither approach to stare decisis worked.

Basic jurisprudential principles would suggest overruling in Dobbs. Roe is a textbook case of the type of precedent that should not be followed, and would be an easy case if not for its nexus to the abortion issue. Even pro-choice legal scholars who believe in legalized abortion on demand and reject originalism have noted Roe’s lack of legal merit since Day One. Soon after the decision was handed down, John Hart Ely notably called Roe “bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.” Laurence Tribe wrote, “One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.” Years later, then–Judge Ruth Bader Ginsburg described Roe as a decision whose “heavy-handed judicial intervention was difficult to justify.” As Roe reached its 30 anniversary in 2003, Jeffrey Rosen asserted that the precedent’s “overturning would be the best thing that could happen to the federal judiciary, the pro-choice movement, and the moderate majority of the American people.”

Of course, movement liberals, far from acknowledging the reality of Roe’s illegitimacy, doubled down and made its protection a litmus test that it would single-mindedly pursue, regardless of the damage to the judiciary or the reputations of those who would occupy it. It is the key reason judicial nominations are so contentious, with shameless vilification of those the Left fears could be the vote to overturn Roe. Just ask Robert Bork, Clarence Thomas, and Brett Kavanaugh.

Roe and Casey have done substantial damage to our political and legal system at every level. Justice White noted in his partial dissent in Planned Parenthood v. Danforth (1976) that “normal rules of law, procedure, and constitutional adjudication suddenly become irrelevant solely because a case touches on the subject of abortion.” This phenomenon, which has become known as the “abortion distortion,” has been observed by several subsequent justices. It is the antithesis of legal principle. As Justice Scalia noted in his partial dissent in Casey, “The only principle the Court ‘adheres’ to, it seems to me, is the principle that the Court must be seen as standing by Roe. That is not a principle of law (which is what I thought the Court was talking about), but a principle of Realpolitik — and a wrong one at that.”

One of the anomalies to be found in the law is that wrongful death suits and even prosecutions can be brought for the killing of an unborn child. At least 38 states have fetal-homicide laws. State custody law often applies to the unborn, as does property law (through the 1L’s nemesis, the rule against perpetuities). Under the common law, the execution of a woman convicted of a capital crime could essentially be stayed until it was determined whether she was pregnant.

We can expect a lot of pressure to be put on the Court, stoking fear of significant negative consequences to overturning the current regime. Of course, such a prospect naturally feels unsettling. But as we are already seeing, states are preparing for that scenario. Each laboratory of democracy is trying to work out where they will strike balance on this issue — if only the Court will let them.

The constitutionalization of abortion law ossified a hot-button issue rather than letting it be worked out in the normal political process. Justice Ginsburg recognized prior to joining the Court that “Roe . . . halted [the] political process” and instead “prolonged divisiveness and deferred stable settlement of the issue.” She hoped, of course, that process would entail the growing legalization of abortion on demand, and pro-lifers of course hope for the opposite. But allowing that debate to work out in the political spheres is itself part of the constitutional design. The Framers wisely left such decisions to the states rather than imposing a one-size-fits-all federal solution. A post-Roe regime would see laws ranging from restrictions in Texas and Georgia to carte blanche in New York and California, and would allow the states the flexibility to shift their position when necessary to meet the needs of their citizens.

Another point on which there will likely be a lot of pressure placed on the Court is the appeal to so-called reliance interests. But in truth, what reliance is there beyond nine months? The Casey joint opinion included a passage about the necessity of abortion on demand to facilitate the “ability of women to participate equally in the economic and social life of the Nation.” Texas Right to Life’s amicus brief aptly describes this as “one of the most specious and ill-considered passages in the history of constitutional law.” The Court could hardly have been more demeaning to women. Another amicus brief filed on behalf of 240 women scholars and professionals discussed the complete lack of evidence for Casey’s assertion at length and illustrated how expanded opportunities for women in society predated Roe by at least half a century while the 1973 precedent actually disadvantaged women. It is common sense that women do not need the right to kill their own children in order to succeed. That is not to mention the problem with concluding by constitutional fiat that unborn babies must not be able to rely on any right to live. Adoption exists for women unable to care for a child. And to the extent that workplaces and schools are not supportive of women with children, we should demand they change rather than force women to choose between children and a career.

The nine justices who have to decide Dobbs may well feel the weight of history on their shoulders as they consider the case. Their decision should be made that much easier by the realization that trying to uphold Roe with an invocation of stare decisis — whether the full-throated version or Casey’s half-baked version — was tried for years and thoroughly failed the test of time.