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.