Tuesday, April 20, 2021

Originalism's Discontinuity Problem

 by Michael C. Dorf

There are a great many things wrong with the Sixth Circuit's recent en banc opinion in Pre-Term Cleveland v. McCloud, which rejected a facial challenge to an Ohio law forbidding doctors from knowingly performing abortions on women who have decided to have the abortion based on a Down syndrome diagnosis. The lead opinion by Judge Batchelder concludes that the law doesn't burden the abortion right recognized in Roe and preserved by Casey, Whole Woman's Health, and June Medical--even for women seeking pre-viability abortions--because the woman can still obtain one, even on the basis of a Down diagnosis, by not revealing her reason to her doctor.

Three separate concurring opinions tendentiously describe the Ohio law as combating "eugenics." As Professor Colb explained on the blog last week, the use of that term is offensive; the express comparison to the Holocaust drawn by Judge Griffin is disgusting.

I don't have anything to add about the invocation of eugenics or some other alarming aspects of the lead and concurring opinions in Pre-Term Cleveland. In the balance of today's entry, I want to discuss a less heated topic--what I'll call the discontinuity problem that plagues originalism and some other theories of interpretation. Judge Bush's concurring opinion occasions my observations.

Judge Bush begins his concurrence by noting that although the lead opinion treats the Ohio law as not burdening the abortion right (for the dubious reason I noted above), he thinks that even if the Ohio law completely banned abortions based on Down syndrome, it would be valid. Why? Because, he says: (1) Prior SCOTUS case law does not say whether such a ban is unconstitutional; (2) where a case presents a constitutional question of first impression, a lower court judge should apply the Constitution's original public meaning; (3) under which the law is permissible. My main focus will be proposition (2), but first I want to say a few words about propositions (1) and (3), both of which are highly problematic.

Let's start with the claim that extant SCOTUS case law doesn't address the validity of a ban on abortion based on Down syndrome. It's true in a literal sense. The Court has never faced a case involving such a ban. But then, there are lots of other cases the Court also has never faced that are nonetheless controlled by extant precedent under any reasonably faithful reading.

Consider a ban on: (a) abortion motivated by poverty; (b) abortion motivated by alcoholism (and attendant worry that a baby would be born with fetal alcohol syndrome); or (c) abortion motivated by a commitment to a job (such as professional athlete, firefighter, or combat pilot) from which a temporary leave of absence would be costly in various ways. The Court has not specifically addressed any of these or any other laws targeting specific motives for abortion, but as applied to a pre-viability abortion, every such law would be a clear violation of the principle established in Roe and reaffirmed in Casey: the right "to choose to have an abortion before viability and to obtain it without undue interference from the State." Although the availability of post-viability abortions may constitutionally turn on whether there is a health reason, the motivation for the abortion pre-viability is simply irrelevant.

Does that mean that the current Supreme Court would definitely invalidate a law that banned pre-viability abortions when the choice to have the abortion is based on the fetus's Down syndrome? No. Six current justices pretty clearly think Roe was wrong as an original matter, and somewhere between three and six of them would pretty clearly overrule Roe at some point. Short of that, a majority might well create a new "eugenics" exception to Roe/Casey/WWH/June Medical and claim that the exception was compatible with prior precedent. That would be totally disingenuous, of course, but there's no Super-Supreme Court to say as much, so they could get away with it.

But Judge Bush doesn't say that he would uphold a ban on abortions based on Down syndrome because the Supreme Court would lie about the current law to let him do so. He says that current precedent, fairly read, doesn't address the issue. That's wrong.

So much for point (1). As to (3)--the claim that the original meaning of the Due Process Clause permits abortion bans--I shall now add Judge Bush to my list of jurists who talk the original-public-meaning talk but walk the original-subjective-expectations-and-intentions walk. Despite lots of general language about discerning meaning, the core of Judge Bush's short originalist analysis is the observation that people at the time of the adoption of the Fourteenth Amendment, including in the Ohio legislature, thought abortion was murder. Judge Bush recognizes that this line of reasoning means the entire abortion right--not just its application to Down syndrome abortions--contradicts the original meaning of the Due Process Clause, but unfortunately for him, he lacks the power to overrule the right in other cases. Based on point (1), however, I have every reason to think that Judge Bush would vote to uphold any conceivable abortion prohibition to come before him on the ground that it presents a question of first impression.

I come now to point (2). Let's put aside the objections raised thus far. And let's consider the matter abstractly. Suppose that SCOTUS precedent clearly establishes some rule X. Suppose further that rule X doesn't directly cover some new situation but that faithful application of the general principles giving rise to and compatible with X appear to cover the new situation. However, applying X here would lead to a result contrary to the original meaning of the underlying constitutional provision that the SCOTUS interpreted using nonoriginalist methods to derive X. Under these circumstances, Judge Bush says that an originalist lower court judge like himself should apply the original meaning rather than "extend" X.

But here's the thing. Anyone who has sat through even the first few weeks of law school knows that there is no sharp distinction between "applying" a precedent and "extending" one. The whole enterprise involves figuring out how far the rationale of one rather than another rule or standard applies and going that far but no further. Lines need to be drawn, and they are sometimes arbitrary, but if one draws lines with care and attention to the underlying policy rationales, one can smooth over the boundaries between one rule or standard and another. That's nearly impossible to do if a rule or standard abruptly cuts off when a judge determines that some new case would involve its "extension" rather than its "application" and therefore the case is governed by the wholly different purported original meaning of the constitutional text.

For example, courts would sensibly construe the First Amendment's Establishment Clause to forbid the use of taxpayer money to purchase King James Bibles and distribute them to every public school child. Courts also would sensibly construe the First Amendment's Free Exercise Clause to require that a public fire department put out fires at churches no less than at movie theaters. So some kinds of taxpayer subsidies for religion are impermissible; others are effectively required. In between there may be subsidies that are permitted but not required. The dividing lines will need to be drawn with sensitivity to a variety of considerations. It's possible to do that if you pay attention to the underlying interests. It's much harder to do that if you have one regime based on precedent and an adjacent regime based on a completely different view based on (supposed) original meaning. And there is nothing special about that set of examples.

Justice Scalia partially recognized this problem. He wrote (both by himself in A Matter of Interpretation and with Bryan Garner in Reading Law) that stare decisis is an exception to originalism and textualism, adding (in both places) that it is likewise an exception to every theory of interpretation. He was right about originalism but that addition about other theories and methods is wrong. Stare decisis is not an exception to modes of statutory and constitutional interpretation that place precedent at their core--like Dworkin's law as integrity or Strauss's common law constitutionalism. If you build your theory based on precedent, then you will still sometimes have line drawing problems, but you won't have whole bodies of inconsistent law directly adjacent to one another--as you do if you follow the approach Judge Bush advocates.

It is bad enough that originalists don't have a solution to the discontinuity problem. What's worse, as Justice Scalia's writings and Judge Bush's recent concurrence illustrate, they don't even appear to be aware of the special problem their methodology creates.


Joe said...

The same sex marriage ruling noted that the right to marriage was always cited in general terms and that it was wrong to read it small. This principle was applied to include same sex couples within the right to marry. Others read marriage small, so much that it wasn't even about men and women, but about men and women conceiving babies the "old fashioned way." We saw some of that in comments on this blog.

The right to choose an abortion was framed likewise in broad terms. This was repeatedly reaffirmed in case law. As an inferior judge, judges of the 6th Circuit have an obligation to follow that. They can pine for a different path all they want. I think they can express their opinions on the topic too. But, as a matter of legal result, that is the law. A woman has the right to choose an abortion with their physician, which Planned Parenthood v. Casey called a matter of conscience.

The text here is correct to compare the case to any number of other rights. The freedom of religion includes discussing with your minister (without needing to keep your reasons secret) if you should marry someone with a serious disability, perhaps discussing, e.g., its effects on raising your three children. Not marrying a person in that case might appall someone. The Supreme Court never specifically addressed it. But, it is not really a case of first impression if a law criminalizes it.

The case might be more complex for something else. The "right to privacy" can cover a lot. For instance, what about the right to hire a surrogate if one is not able to conceive? You can cite language that covers that. But, unlike the right to choose an abortion, the Supreme Court did not specifically cover that. There are reasons to be careful there & maybe (though I'm not game) originalism can help there.

This wasn't that case. A reason ban, as I said last time, in fact directly clashes with current case law. It's basic to Roe v. Wade that a woman has a right to choose. In fact, Doe v. Bolton itself (the companion to Roe) struck down a Georgia law that provided only limited reasons (including fetal abnormality) to have an abortion. A more open-ended right was protected instead.

Hashim said...


On (2), why is discontinuity necessarily a "problem"? Yes, it's true that you'll have two bodies of adjacent law that reach radically different results based on different methodologies and separated by a factual distinction that may not be all that material. But the alternative is to increase the scope of the error from the first body of law just for the sake of consistency. So the law will be smooth, but more wrong than otherwise. To be sure, I wouldn't go so far as to say that supports distinguishing prior precedent on the basis of utterly arbitrary factual distinctions (to take the extreme examples, the case was decided on a Tuesday or happened to involve a railroad), because at that point the law risks appearing irrational and so the prior precedent should simply be overturned if consistent with one's views of stare decisis. But I think it can sometimes support identifying a factual distinction that is at least somewhat relevant to a proper analysis of the question presented, even if it isn't material under the (erroneous) analysis in the first decision.

Indeed, and also related to (1), even apart from whether the prior decision was wrong, don't courts routinely identify new factual situations that call for creating exceptions from prior decisions, without satisfying stare decisis factors, even though the legal rule adopted in the prior decision would have encompassed this situation? For example, in Harmelin, the SCt held that mandatory minimum sentences are never disproportionate outside of the capital context. But then in Miller, Justice Kennedy created an exception for children -- that exception had no basis in the reasoning of Harmelin itself, but the Court didn't undertake any sort of stare decisis analysis; it just said that children present unique considerations that weren't addressed in Harmelin.

So too, isn't it pretty obvious that abortions motivated by discrimination on the basis of race, sex, and disability present a factor that some Justices may think relevant but that wasn't at all analyzed by the Court in Casey? I doubt anyone can confidently say that, if such a law had been present in Casey, a majority of the Court wouldn't have created an exception for them. Indeed, Pennsylvania *had* such a law, and it wasn't even challenged in the Court, no doubt because the challengers made the prudent strategic judgment that a majority of the Court would *not* have invalidated it.

Unknown said...

I think enforcement matters to whether abortion was really considered murder. Enactment without enforcement is not much evidence of actual beliefs.

kotodama said...

Another reason stare decisis is great, aside from consistency and stability, is that it's actually functional and practical. If courts have to start over from scratch every time a case presents itself with even the slightest factual difference—i.e., pretty much all the time—then everything quickly becomes unworkable. Just like Congress wants courts to use common sense and—gasp!—proper judgment when applying statutes instead of constantly reinventing the wheel, the Supremes and the Circuits (should) want their respective lower courts to do the same with precedent. But maybe unworkability is one of originalism's key selling points (depending on who are considered to be the customers).

It's OT, but I sort of disagree that the firefighting hypo runs afoul of Free Exercise. Rather, it seems more like a heartland equal protection violation. But I guess under the present SCOTUS approach—for the pandemic cases in particular—EP has been pretty much swallowed up by FE. Which makes sense, because reactionaries mostly detest EP claims. So going by current law, misguided though it may be, then yes it's an FE violation.

Joe said...

"stare decisis is great, aside from consistency and stability"

Kavanaugh argued that stare decisis is basically "originalist" (I frame it that way since I'm not sure exactly what that word means). To cite one guy.

One can quote Alexander Hamilton (Fed. 78) which I do so here because his basic statement is basically well said and has staying power:

"To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them."