June Medical and How to Talk About Abortion Part III

By Eric Segall

In the fall and winter of 2014, I published two posts on this blog lamenting how we talk, argue, and litigate about abortion. Those posts generated as much attention as any I have written over the last six years in terms of substantive feedback. My main sentiment was that "we don’t need to live in a zero-sum world when it comes to abortion and that name calling and misleading labels do not advance the debate or the politics surrounding the debate. Although compromise and civility might be hard to achieve, I argued we should at least try to do better (on both sides)."

I also cautiously suggested that compromise would be more likely if the Supreme Court returned this issue to the political process. This term, of course, the Court decided June Medical, which effectively held that lower courts must determine whether a regulation of abortion places an undue burden or substantial obstacle in the way of women seeking abortions without the court addressing the law's benefits if any (Chief Justices Roberts' concurring opinion is the controlling one). This holding all but guarantees more expensive, lengthy litigation across the United States because red states will continue to pass laws targeting abortion providers as well as women seeking to terminate their pregnancies.

Last week I had the pleasure of having on my Supreme Myths podcast Professor Mary Ziegler, an expert on abortion, reproductive rights, and family and constitutional law. She has written three books on abortion including her new oneAbortion and the Law in America: Roe v. Wade to the Present, which I strongly recommend. Among many other important contributions, Professor Ziegler has built a reputation as someone who is fair to both sides of the abortion debate.  Her new book and her views as stated on our podcast definitely provide measured, open-minded perspectives on this highly divisive issue, Reading her book and interviewing her made me want to revisit the question of how we talk about abortion.

The abortion debate will, sadly in my view, be dictated in large part by how the Court decided June Medical. Here is Professor Ziegler on the case: 
June Medical signals trouble to come for supporters of abortion rights. Roberts is famous for being an institutionalist, someone who cares deeply about the Supreme Court’s legacy. And so partly for that reason, he said that stare decisis...compelled him to strike down a Louisiana law functionally identical to one invalidated four years ago. But Roberts entirely rewrote precedent in June Medical. He made the relevant rule in abortion cases, the undue burden test, much less protective of abortion rights. In the future, we will see even more restrictions coming to the Court, especially those that claim to give legislators the right to regulate when a scientific question is uncertain. Roberts also made a point of saying that no one had officially asked him to overturn Roe or its progeny. He might be game if someone makes that request. The future of abortion rights remains pretty uncertain if Roberts remains the swing justice.
So how we talk about abortion will for at least a few years to come be dictated substantially by how we litigate about abortion in America. An interesting question is whether that is a good or bad thing.

Having wrestled with that issue for thirty years as an adamantly pro-choice law professor who has grave doubts about Roe, Casey, and their progeny, here are a few more tentative thoughts to add to my prior writings on the subject, but first a caveat.

If I thought Congress would ever be able to pass a life-begins-at-fertilization law or other statute banning abortion nationwide, I would think twice about what I am about to write. But for such a law to pass, the GOP would have to control both houses of Congress and the White House and would have to abolish the filibuster for normal statutes because there is no way in the foreseeable future the Senate could muster 60 votes for such legislation. I believe that is so unlikely a possibility as to justify thinking it will never happen.

Over the last 10 years, many states passed laws requiring abortion facilities to be structured like out-patient surgery centers and requiring doctors to have admitting privileges at nearby hospitals. Both laws were ruled unconstitutional by the Supreme Court in a 5-3 vote in 2016 when the Court only had eight Justices after Antonin Scalia's death, and the admitting privileges law was declared unconstitutional again this term in June Medical. What all of that litigation meant was that both sides spent the last decade arguing about the pros and cons of these laws rather than focusing on basic questions such as who should decide whether women can terminate their pregnancies--the voters or the courts--and even more basically whether women should be allowed to terminate their pregnancies and under what conditions. Instead, the debate has had to fit itself into the Court's precedents.

I asked Professor Ziegler during our podcast whether she thought compromise on abortion was possible. She was quite pessimistic, observing that the issue is not only divisive on its own but has been politicized so much that it is now quite difficult being a pro-choice Republican or anti-choice Democrat. In other words, abortion, with all its attendant difficulties, is also now a stand-in for political party affiliation, and our political parties are as divided as they have ever been. I believe the Court's decisions on abortion have contributed to this polarization.

Our country does not debate whether prior restraints on speech should be almost always illegal or whether a state can officially establish a state religion (well in the latter case other than Justice Thomas).  There is a place for judicial review when government actors clearly violate the Constitution, even under my skeptical view of the Supreme Court. But I strongly question whether abortion is such an issue. 

Moreover, affirmative action and gun control are also divisive topics, but not like abortion. There are no marches on Washington to protest or defend either of those two social controversies. Why is abortion so different?

Professor Ziegler and many others suggest that to many people, and unlike other hard issues, abortion is a zero sum game. Pro-life proponents who hold strong views believe abortion is murder and must be completely or almost completely prohibited whereas people with strongly held pro-choice views generally believe women should have the right to terminate their pregnancies without governmental interference at least until fairly late in their pregnancies, usually viability.  How is compromise possible when people hold such strongly divergent positions? 

As I suggested six years ago, I think compromise is possible but only if the courts return this issue to the political process. The key is humility. The pro-choice side, my side, needs to recognize that millions of Americans strongly oppose abortion and that the Constitution is truly agnostic on the question.  Neither the text nor history of the Constitution speak to the issue, and the Court's decisions in this area have landed us where we are today, which is not a good place to be. 

In cities in blue states, abortion is widely available to rich and poor, whereas in most of rural America and in red states it is only easily available to people with means. Just a few years after Roe, Congress prohibited the use of Medicaid funds for abortions, making them quite difficult to obtain for poor women. Any constitutional scheme that so affirmatively leads to a right being exercised much easily by the rich than by the poor must be seriously questioned.

On the other hand, pro-life advocates should have the humility to recognize that at least 50% of Americans do not agree that abortion before viability is murder or that abortion should be outlawed, at least early in the pregnancy. Pro-life proponents also need to accept that making abortion a religious issue substantially harms rather than furthers the debate. Once faith is employed, there is little or no room for rational discourse, and faith should not be the driver of either legislation or court decisions.

As long as lawyers and judges play the most important role in how America discusses abortion, there is little hope for progress because we are attacking the issue sideways. In other words, constitutional law is getting in the way rather than helping, and it must be remembered by both sides that women will have abortions whether they are legal or not. That concern is a proper one for voters and legislators to consider, but probably improper for judges,

It wasn't always impossible to discuss abortion reasonably. In the words of Emma Green, writing in he Atlantic, "gone are the days of compromise that allowed politicians to remain somewhere in the middle on abortion, signaling to voters that they respected their feelings of moral complexity." Although I may be a minority of one, I believe it is possible to return to those days, but not if the issue is shrouded by lawyers, judges, and mostly empty balancing tests that result in time-consuming and expensive litigation across America.

If one believes that abortion is murder and should be outlawed in all or almost circumstances, or if one believes that women have a fundamental constitutionally protected right to abortion, compromise and rational discourse will be nearly impossible, But it is unclear how many Americans actually hold those polar positions. If the courts got out of the way, most legislatures would likely have to find some middle ground, at least in the long run. Until that happens, however, I am afraid we will not be able to helpfully talk about abortion in America, and the issue will continue to dominate local, state, and national politics in unhelpful ways and bleed over to judicial nominations and presidential elections. We simply need a new paradigm, and we need it soon.