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.


Joe said...

One book that covers history is "Sex and the Constitution: Sex, Religion, and Law from America's Origins to the Twenty-First Century" by Geoffrey Stone. The author in the past praised it. As to consistency, the author's own constitutional principles found Roe v. Wade wrongly decided. But, such also was the case for a slew of other well accepted opinions.

John Hart Ely Jr. strongly criticized Roe but later deemed it appropriate to uphold it. In a collection of his essays, there was reference to him even sending a letter of thanks to the justices for so doing in Planned Parenthood v. Casey.

The ruling did weaken the breadth to a significant degree, but a coat is still helpful even if ripped. Likewise, the opinion provided more depth regarding how the right fit in the wider whole. Casey also had a section written by Souter on precedent (which made Justice Breyer's citation in a recent case where a 40 year old precedent was overturned apt), so that too is helpful.

It is quite true that Roe v. Wade is not an outlier and this includes those who insist it is somehow notably less well written. This is put out there as some sort of well established fact, which to me is unfounded. The opinion is open to criticism and is notable for its breadth. But, to me that is more a concern for degree, not kind.

There is a reason it was 7-2 and in fact a few justices chosen to select uncontroversial cases (the first go around, there was not a full bench) select it over others.

Joe said...

(the "author" in my comment refers ES, not Stone himself)

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Unknown said...

Of course Professor Segall is correct that there are many examples of the Court finding constitutional principles in the ether. The problem in the abortion context, though, is that the way this constitutional principle was set up, granting substantial deference to the woman while denying legal personhood to the fetal human being, tends to tip the constitutional scales against the fetal human being. Thus Dean Chemerinsky's comment about balance is not well placed in this context. It is well accepted that women have a natural and should have a legal right to exclusive discretion about whether to welcome potential life after a procreative act. However, by constitutionalizing that right and not constitutionalizing any right to life in a heart-beating, cognitively distinct fetal human being, the chance for the states to explore different forms of balance was hampered, forcing the states to challenge the hegemony of the woman's right. I agree with Roe's conclusion that fetuses cannot practically be granted legal personhood. Yet any right of the woman must at some point give way to the natural right of a cognitively distinct, heart-beating being in the womb to some considerable legal respect as well. The Court is a lousy legislator, though, and these matters would better have been left to the states in the first place, which were already moving to respect the woman's discretion at least in significant ways.
My view is that the Supreme Court should respect another constitutional principle, and now let federalism breathe a little more freely while continuing to respect a woman's discretion. This is not 1973, women have many options for deciding not to proceed with a potential life after a procreative act, and the states are better equipped to strike a balance that suits the sensibilities of the citizens of the respective, and divergent, states. Dave Oedel

Joe said...

while denying legal personhood to the fetal human being

Denying the constitutional personhood of what in this context ranges from a fertilized egg to a nine month fetus. The government can grant some sort of "legal" personhood here. This reflects text and history. An embryo isn't counted as a person for constitutional purposes now and it wasn't in 1970.

This is noted ("not constitutionalizing any right to life in a heart-beating, cognitively distinct fetal human being") but the two are a bit too easy blended together.

Again, there is not always a "heart-beating" fetal human being here. Most abortions occur early in the pregnancy. Even if there is some "heart," it is an embryo.

And, historically, that wasn't the test either. The "cognitively" line is the one basically drawn by Dorf and Colb. Current science suggests occurs sometime after the twentieth week. Roe v. Wade drew the line at viability (with exceptions for life and health).

So, the "lousy legislator" here in fact addressed that issue too. Roe v. Wade held that a woman's constitutional interests here overrode that of the egg/embryo/fetus when the interests clashed, not that the other side did not exist. Casey loosened the line, allowing more state discretion regarding protecting the interests of prenatal life. So, the "hegemony" of the woman's right here does not mean that prenatal life is ignored.

"This is not 1973, women have many options for deciding not to proceed with a potential life after a procreative act" ... they had options then too though surely (though there was some backward movement) are in a better position. "Federalism" includes protecting constitutional rights, including the rights of rape victims from not being forced at eight weeks or whatever to continue to carry the product of their rape.

I'm curious what other constitutional rights should be left to the states, including those that burden rights of women, selectively favor certain religious sentiments and interfere with basic family decisions that traditionally was seen "without a doubt" as a basic part of liberty (to quote a 1920s opinion). I respect the attempt at balance here but push come to shove, it doesn't amount to much on a bottom line basis if Alabama and Georgia's laws are seen as constitutionally benign.

Shag from Brookline said...

References to a "procreative act" may be incomplete without referencing whether each/both parties to the act actually intended to procreate via that act.

Also, some conservatives who favor strong limitations on abortion have expressed concern that exceptions for rape and incest are not provided, with some conservatives raising a right of self-defense, not against the person involved with the rape or incest, but against the product of such act. Heller (2008, 5-4) introduced into the 2nd A an individual right of self-defense via use of certain arms. Is there a suggestion that self-defense against an unwanted pregnancy should be available? What other constitutional rights should have the benefit of self-defense? Should there be a dual right of self-defense not only against the product of rape of incest but also against the perpetrator?

Unknown said...

As to Shag from Brookline's comments: the use of the term "procreative act" concedes that there may or may not have been consent to the insemination, but that the woman retains the right to welcome the potential life or not, at least for a reasonable time after the act. There is no need for any third party to judge whether there was consent.

If you accept that the woman has unfettered early discretion, some exceptions can be justified for incest (imagine a young girl violated by a family member who does not know her options), or in cases of a traumatized rape victim who cannot bring herself to acknowledge the situation until later. An exception could be justified as a shifting in time of the decision because of a sort of incapacity at the normal time within a few weeks of the act.

The analogy of self defense could fairly be made by a rape victim should she so choose, and she should be respected in that decision should she choose to be unwelcoming to any potential or very nascent life. However, once the unborn child develops a heart and a head, I think the woman had better have a damned good reason to justify ending that life.

Dave Oedel

Shag from Brookline said...

An exception for the life of the woman seems to be acceptable to many who are anti-choice but not for medical, especially mental, impacts on the health of the woman. Economic issues with an unwanted pregnancy, especially for poor women, especially if they did not actually intend to procreate or consent to the "procreative act" should be seriously considered. Third parties should not impose time limits on such decisions.

Dave does not respond on the dual right of self-defense against the perpetrator.

Unknown said...

From my perspective, Shag misconceptualizes what is going on with the imposition of time limits on when the woman can have unfettered discretion to welcome any potential life after a procreative act. Those time limits are not imposed by third parties, but by nature and the woman herself, as the potential life, with the mother's effective nurture, will predictably develop a heart and a head of its own though admittedly still interdependently conjoined with the mother. That clock ticks independently of the rationales for delay. Almost all the rationales for delay beyond the first few weeks come at the expense of another well developing life, and economics, mental health, etc., should be viewed as having been waived if not raised earlier in the normal course.

Early on, the woman can claim self defense against a possible rapist or family member taking advantage of her. However, that right too is waived if the woman effectively welcomes the potential life by taking no steps early on to end any procreative process. Only if the woman takes reasonable steps but they prove unavailing should the woman have the right to time-shift, and even then, we must recognize it as a brutal act of killing, albeit excused at law. Even someone claiming self defense in the ordinary criminal context must show that there was no alternative but to defend with deadly force.

Dave Oedel

Shag from Brookline said...

From my perspective, Dave's use of the term "procreative act" suggests he believes a "procreative act" should be limited to procreative results and not to the pleasure and joy, dare it be said, of having intercourse with no actual intent to procreate. Now that's a "Penceive" view. Dave's views on "waiver" are so paternalistic as is his view on the woman effectively welcoming the potential life created against her will (although a Third Party may be presumed to have blessed it).

Shag from Brookline said...

Joe referenced Geoffrey Stone's book above, which I have not read. But I just read Stone's essay "Roe v. Wade, Frontiero v. Richardson, and the Equal Rights Amendment" at the Take Care Blog. Very interesting about the role the ERA played in the constitutional analysis in Roe v. Wade.

Leaving abortion out of the Constitution and leaving abortion to the "laboratories" of states can result in paternalistic Frankenstein experimentation of control over women's bodies, as witness recent anti-abortion laws enacted in former Slave States.

Joe said...

The Take Care Blog piece appears off to me, especially when you consider the timing.

The two cases focused upon were decided in the same term, but the oral argument for Frontiero v. Richardson occurred about the same time as when Roe v. Wade was handed down. This being January 1973 (ERA passed Congress March 1972).

Roe actually was re-argued; the first argument was in December 1971. You can listen to the oral arguments (along with Doe v. Bolton; one reason I flag that is that I think the woman -- who later became a state judge -- defending the Georgia law probably did the best job of the advocates) at Reed v. Reed was decided at the end of 1971.

Basically, talking about gender equality here is somewhat anachronistic -- sexual equality surely influenced the issue and was touched upon by a few briefs and such. But, the advocates and opinions focused on established privacy arguments. Mark Tushnet who contributed to Jack Balkin (his blog being one me and Shag reads) "What Roe v. Wade Should Have Said" noted this in his comments there -- a sexual equality argument was premature.

The ERA pending led the Supreme Court to even after Roe was handed down to go only so far on the constitutional test for sexual equality when that argument was specifically at issue. I think that is a separate matter. In time, as seen in Planned Parenthood v. Casey, sexual equality arguments gained wider acceptance.

Joe said...
This comment has been removed by the author.
Joe said...

I too think "procreative act" is suggestive though blandly speaking yes we are talking about some "act" that in the nature of things is "procreative" to the degree that a sperm and an egg united and all that. Anyway, realizing that we won't convince each other about this deeply divisive issue among some comments, it does seem useful to me to flag a few things. Such as the logic of the opinions (there are competing interests, none ignored, etc.).

The back/forth suggests some recognition that legislative line-drawing might be too extreme here. So, we have a "few weeks" guideline, one that would suggest a line at conception or such would be problematic. In practice, a few weeks is not enough to cover a range of matters, including barriers set in place by state regulation and denial of funding that requires some to have time to raise the funds. Teens in particular but also many women do not realize they are pregnant for weeks. Then, there needs time to schedule appointments (again, state rules such as waiting periods can cause delays, including if a state has a single clinic). This suggests why 12 weeks is internationally often the line drawn, if not one without exceptions.

Prof. Segall himself noted elsewhere that 90% of abortions in this country occur by that point with the remainder again factoring in a range of things. The specific "line" that is appropriate is one deeply debated, usually factoring in greatly disputed religious and moral beliefs with deep religious liberty implications. The presence of some sort of primitive heart [brain consciousness appears more to reflect line drawing at the end of the life spectrum] or embryonic head overriding this is somewhat dubious to many of us.

Joe said...

Tushnet (Marshall) and Stone (Brennan) were both law clerks at the time Roe v. Wade was decided, perhaps suggesting how people can see things differently. The book referenced was written in 2005 though having read various accounts, Tushnet's conclusions to me seem correct.

Anyway, my comments above are not comprehensive. Again, that is basically impossible in this context, if possible in any context.