Wednesday, February 02, 2022

Ten Reflections on Teaching Roe and Casey (Maybe for the Last Time)

 By Eric Segall

I have been teaching Roe v. Wade and Planned Parenthood v. Casey since 1993. We are at that point of the semester where we cover these cases and I have realized I may not teach them again. Although my survey Con Law II course does review a few overturned cases, given how much there is to cover, if the Court dramatically changes the law of abortion this June, I doubt there will be time to teach these old cases or even if I do, I will do so quite differently. All of this caused me to reflect on these two landmark decisions, the many misconceptions people have about them, and my own views on abortion and judicial review.

1) Although Roe was certainly controversial when it was decided in 1973, the vote was 7-2 not 5-4. The decision did not immediately spark major political opposition. The first Justice to be nominated after Roe, John Paul Stevens in 1975, was not asked a single question about abortion during his confirmation hearing. Not one.

2) Most evangelicals did not oppose Roe or abortion until the late 1970's when Ronald Reagan used the issue to form the religious right/GOP alliance that today controls the Republican Party. When Roe was announced, the overwhelming response from evangelicals was silence. Jerry Falwell did not preach against abortion until 1978, five years after the decision. Given this time lag, and the coincidence of evangelical embracing of the anti-abortion cause at the same time evangelicals joined Reagan's political campaign, one might be forgiven for thinking that the opposition to abortion by the religious right was at least partly politically motivated.

3) This paragraph from Roe is still one of the best summaries of the harm caused to women forced by the state to carry their pregnancies to term against their will. Regardless of whether one thinks abortion is murder or not, these words should resonate with all caring people (which is not to suggest how this hard issue should be resolved by judges):

The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.

4) After Roe was decided, both the federal government and many states prohibited taxpayer funding for most abortions under Medicaid and other aid programs. These decisions, which the Court upheld (probably correctly as a matter of constitutional law) amount to terrible public policy. To deprive the poorest women and families of the ability to obtain lawful abortions increases all of the downsides caused by unplanned pregnancies and works a terrible hardship on those least able to care for their children and families. These laws, supported by the religious right, are quite simply, draconian, mean-spirited, and almost unbearably elitist.

5)  The fact that abortion is not specifically mentioned in the Constitution does not, contra to what Justice Kavanaugh said at the oral argument in Dobbs v. Mississippi, suggest that the Court acted improperly in Roe and Casey. Most of the Court's conservatives over the years have accepted as correctly decided cases holding that parents have the right to direct the education and lives of their children and competent adults have the right to refuse unwanted medical treatment even though neither right is mentioned in the Constitution. In addition, the Court's conservatives have adopted anti-commandeering and sovereign immunity rules that are nowhere in the Constitution's text. As I wrote here in detail, Roe and Casey may be right or wrong but neither case in terms of method is a  constitutional outlier.

6) Between Roe in 1973 and Casey in 1992, the Court struck down virtually all state laws regulating abortion before viability except those dealing with public funding and minors. Although Casey purported to affirm the "central holding" of Roe, the case validated waiting periods, informed consent rules, and draconian reporting requirements for clinics all of which had been previously struck down by the Justices. The overturning of Roe's trimester framework in favor of the undue burden test dramatically changed the law more than the Justices in the plurality suggested.

7) The discussion of precedent in Casey is roughly 30 pages long in the US Reports (I believe the longest discussion of precedent in Supreme Court history). The plurality adopted a multi-factor test taking into account reliance, unworkability, changes in doctrine (or not), factual changes, and even whether loud public opposition to a major case presents  a reason for keeping the case. Yet, despite this discussion, and its ultimate conclusion that the core of Roe would be affirmed, the Court overturned several major abortion decisions involving laws like those mentioned in number 4 above, without ever applying the stare decisis test the Justices used pages earlier in the decision. In other words, after articulating a test for precedent in thirty pages in one part of the opinion, the plurality completely ignored that test in a later part of the opinion. It might have been possible (though likely difficult) for the Court to explain why its lengthy discussion of stare decisis attached only to what the plurality opinion called Roe's "central holding" but not to later decisions purporting to implement that holding--like the cases striking down waiting period requirements and informed consent rules, which Casey overruled. However, despite the dissenters pointing out that inconistency, the plurality opinion did not offer any reasons for their differing treatment of stare decisis.

8) Justice Blackmun's concurring and dissenting opinion in Casey, lamenting how the Court watered down his own opinion in Roe, and upset that four Justices in Casey were willing to overturn Roe completely, said the quiet part out loud in a rare display of Supreme Court Justice honesty:

In one sense, the Court's approach is worlds apart from that of The Chief Justice and Justice Scalia [in dissent]. And yet, in another sense, the distance between the two approaches is short--the distance is but a single vote.

I am 83 years old. I cannot remain on this Court forever, and when I do step down, the confirmation process for my successor well may focus on the issue before us today. That, I regret, may be exactly where the choice between the two worlds will be made.

If changing judges changes law, do we know what law is? Alas, that is a question for another day (and post). 

9) Justice Scalia's dissent in Casey, has, in this author's opinion, one of the best statements of the appropriate role of the Supreme Court in history. Unfortunately, Scalia acted contrary to his own words throughout his tenure as a Justice:

If, as I say, our pronouncement of constitutional law rests primarily on value judgments, then a free and intelligent people's attitude towards us can be expected to be (ought to be) quite different. The people know that their value judgments are quite as good as those taught in any law school--maybe better. If, indeed, the 'liberties' protected by the Constitution are, as the Court says, undefined and unbounded, then the people should demonstrate, to protest that we do not implement their values instead of ours. Not only that, but confirmation hearings for new Justices should deteriorate into question and answer sessions in which Senators go through a list of their constituents' most favored and most disfavored alleged constitutional rights, and seek the nominee's commitment to support or oppose them. Value judgments, after all, should be voted on, not dictated; and if our Constitution has somehow accidently committed them to the Supreme Court, at least we can have a sort of plebiscite each time a new nominee to that body is put forward. Justice Blackmun not only regards this prospect with equanimity, he solicits it.

Yes, just so, Sadly, as mentioned above, and as I have documented many times, Scalia imposed his value judgments on the rest of us on a regular basis. 

10) According to Jeffrey Rosen, shortly before Casey was announced, Justice Kennedy, whom many wrongly believed would be the fifth vote to overturn Roe, said the following to a reporter he had allowed in his chambers: “Sometimes you don’t know if you’re Caesar about to cross the Rubicon or Captain Queeg cutting your own tow line.” Kennedy, according to Rosen, "then excused himself, saying that he needed to 'brood.'"

Rosen didn't like that but I think Kennedy was right "to brood" and to famously worry so much about abortion. Supreme Court Justices should deeply reflect on the difficult issues they must decide and not pretend that there are obviously or objectively right answers to these kinds of issues. 

I am pro-choice all the way down and have consistently argued for 30 years that Roe and Casey were improper exercises of judicial review.  Yet, as we approach the likely end of judicial enforcement of abortion rights, I would be less than honest if I didn't concede that I approach that world with tremendous fear and concern for the women and families whom red states will  mistreat and abuse by prohibiting all or most abortions. Maybe I have been wrong for thirty years. I just don't know.