Sunday, May 19, 2019

Roe, Judicial Review, and the Myth of Abortion as a Constitutional Outlier

By Eric Segall

In Roe v. Wade, seven Supreme Court Justices signed on to an opinion detailing the substantial burdens on women and their families of abortion bans and balanced those harms against the states’ interest in the health of the mother and life of the fetus. They came up with the famous or infamous trimester approach which in practice resulted in a bifurcated regulation of state abortion laws. Prior to viability, states had little authority to regulate abortion while after viability states could ban all abortions subject to exceptions for the health and life of the mother. Eventually, Planned Parenthood v. Casey modified the law to allow regulations on abortion that do not amount to an undue burden on a woman’s right to choose, but complete bans were still unconstitutional until after viability.

There is a myth propounded by legal scholars, commentators, pundits, and even Supreme Court Justices that Roe as initially decided, and later Casey, are constitutional outliers. That, leaving aside the admittedly difficult policy implications triggered by the issue, the Court’s abortion jurisprudence was somehow constitutional interpretation at its worst. For example, Professor Michael Paulsen wrote that the problem with Roe “is that it has absolutely no basis in the text, structure, or history of the Constitution. No rule or principle of law fairly traceable to the text...structure, or ... historical understanding of an authoritative decision of the people, remotely supports the result reached in Roe. In terms of fair principles of constitutional interpretation, Roe is perhaps the least defensible major constitutional decision in the Supreme Court’s history.”
Similarly, Justice White dissenting in Roe said that “the Court engages not in constitutional interpretation, but in the unrestrained imposition of its own, extra-constitutional value preferences." And even the famous liberal and pro-choice constitutional law professor John Hart Ely famously said that Roe “is not constitutional law and gives almost no sense of an obligation to try to be.” I could reproduce hundreds of similar quotes concerning Roe and its allegedly illegitimate method of constitutional interpretation.
This criticism is utter nonsense. Roe and Casey may be right or wrong, or good or bad, but they are both typical examples of how the Court decides, has always decided, and will likely always decide, constitutional questions, just with larger stakes. No reasonable person can deny that requiring a woman to carry a fetus to term against her will is a serious denial of her personal freedom that carries substantial unwanted consequences. It may also be true that the states’ interest in the fetus’ right to life outweighs that infringement, but that difficult balancing of important and conflicting values is commonplace in constitutional law. As Dean Erwin Chemerinsky has said, “the desire for value-neutral judging in constitutional cases is an impossible quest because the need to balance competing interests is inescapable ….”
Some, like Professor Paulsen, argue that the right to an abortion is not mentioned in the Constitution, and therefore it is illegitimate for the Court to protect a liberty that the Constitution does not mention, and that is what makes the Court’s abortion jurisprudence illegitimate. But such a claim is hogwash. Prior to Roe, the Court protected the right of parents to control the education of their children even though such a right is not listed in the Constitution. Prior to Roe, the Court said the Constitution requires state legislatures to redistrict according to a one-person-one-vote rule and contains an equal protection principle limiting the federal government even though nether idea is anywhere mentioned in the Constitution nor fairly derived from history.
Over the last few years, the Court created principles of  “equal state sovereignty,” “anti-commandeering,” and state sovereign immunity from lawsuits by their own citizens nowhere found in the text of the Constitution and only controversially supported by our history (at best). Just last week, Justice Thomas wrote an opinion for the five conservatives telling Nevada that it may not open its courts to lawsuits by its citizens against other states even though the Constitution says nothing about limiting Nevada’s power to do so. Thomas said that “There are many … constitutional doctrines that are not spelled out in the Constitution but are nevertheless implicit in its structure and supported by historical practice.”
Many may argue that the right to terminate a pregnancy is not “supported by historical practice.” But the right to control one’s own body is in fact “supported by historical practice,” so much so that the Court has said competent people have a constitutional right to refuse unwanted medical treatment (another Court-created right not listed in the Constitution). Judges can describe all rights narrowly or broadly depending on whether they want to support a finding the right is “supported by historical practice.”
Whether the United States Constitution protects a woman’s right to terminate her pregnancy and/or how it protects such a right is not different in terms of constitutional interpretation than whether white people have the right to not have state universities use racial preferences, whether state workers have a right not to pay mandatory union dues, and whether people have the right to write checks to politicians for political purposes. None of those rights are mentioned in the Constitution or obviously supported by historical practice, but all have been protected by the Supreme Court.
Arguments about whether Roe and Casey should be affirmed, reversed or limited by the Supreme Court should be made without the canard that those cases are somehow different in kind than other constitutional controversies. Abortion may be (likely is) more divisive than other constitutional issues and the stakes might be much higher. But like all other constitutional interpretation questions, whether women have a right to choose depends on judges engaging in the difficult balancing of conflicting values and the imposition of judicial value judgments separate from text and history. No theory of constitutional interpretation or appropriate judicial role distinguishes Roe and Casey from hundreds of other constitutional law cases where constitutional rights will be protected, or not, by judges making difficult choices.