Roe and Casey Were Grievously Wrong and should be Overruled – Cooper et al.

Posted by on Nov 22, 2021 in Per Curiam

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Roe and Casey Were Grievously Wrong and should be Overruled[1]

Charles J. Cooper

Richard W. Garnett

Peter A. Patterson

Brian W. Barnes

John D. Ohlendorf

 

The Supreme Court of the United States has done much over the course of American history to protect and secure our constitutional system of government, but it has been far from infallible. This Article is about two of its worst mistakes.

The history of how the Nation and the Court have together come to recognize past constitutional errors is an uneven one. It took the Civil War and the Thirteenth and Fourteenth Amendments to correct the Court’s grievous errors in Dred Scott v. Sandford.[2] In many other instances, however, the Court has recognized and corrected its own errors. Indeed, it was the Court’s willingness to heed the call to turn from grievous error that led to “the single most important and greatest decision in the Court’s history, Brown v. Board of Education, which repudiated the separate but equal doctrine of Plessy v. Ferguson.”[3] It has the opportunity and the duty to do so again.

In 1973, the Court decided Roe v. Wade, holding that the Constitution confers an expansive right to unrestricted abortion, “obliterat[ing] the abortion laws of all fifty States”[4] with a single stroke. As a matter of the Constitution’s text and history, it is no secret that Roe is not just wrong but grievously so. Roe was roundly criticized as wrong the day it was decided, and it has been robustly opposed both within and outside the Court ever since. No sitting Justice has defended the merits of its actual reasoning.

By the narrowest of margins, the Court in Planned Parenthood v. Casey refused to overrule Roe—not because it thought Roe was correct, but because it thought Roe must endure as a matter of stare decisis. But 30 years later it has become clear that Casey, too, was egregiously wrong, for each one of the stare decisis factors cited by Casey itself supports Roe’s repudiation. While many Americans may hope and expect that the political victory Roe declared for their side of the abortion debate will remain unquestioned, this expectancy plainly does not constitute the type of detrimental reliance to which the Court has given weight in the stare decisis calculus. Judicial developments and scientific progress have undermined Roe as a matter of fact and law. And Roe’s doctrinal standards, as reframed by Casey, have proven unworkable.

The deeper sentiment behind Casey’s decision—a vision of the Court “call[ing] the contending sides of [the] national controversy” over abortion “to end their national division,”[5]—has proved equally unsound. By reaffirming Roe, the Casey majority imagined that it could bind up the national division over abortion. But it was the decision in Roe itself that “stimulated the mobilization of a right–to–life movement,”[6] and the abortion controversy has endured and intensified since Casey. By reaffirming Roe, the Casey majority hoped that it could forestall a “loss in confidence in the Judiciary.”[7] In fact, 30 more years of Roe’s misrule have proved that the greatest enduring threat to the Court’s legitimacy is Roe itself. By reaffirming Roe, the Casey majority hoped to preserve “the Nation’s commitment to the rule of law.”[8] But rather than safeguarding our constitutional order, Roe and Casey have distorted it. By every measure—including the lines marked out by Casey itself—no judicial error stands in greater need of correction than the one made in Roe.

It is now 48 years “after [the Court]’s holding that the Constitution protects a woman’s right to terminate her pregnancy,”[9] and the legitimacy of that holding “is still questioned,”[10] more intensely than ever. Another 48 years of standing by Roe’s error will not yield any different or better result. The time has come to overrule Roe v. Wade.

I.          Roe’s Creation of a Constitutional Right to Abortion Was Egregiously Wrong.

As the Court has long recognized, stare decisis is “not an inexorable command,”[11] and “is at its weakest when [the Court] interpret[s] the Constitution.”[12] When “strong grounds” exist for overturning an erroneous constitutional precedent, the Court will do so.[13]

The stare decisis inquiry looks first to “the quality of [the precedent’s] reasoning,”[14] including whether it is “not just wrong, but grievously or egregiously wrong.”[15] We begin, accordingly, by briefly surveying some of Roe’s most serious, and by now almost universally acknowledged, flaws.

A. Roe conceded up front that “[t]he Constitution does not explicitly mention any right of privacy,”[16] and it was remarkably coy about what provision of the Constitution, exactly, gives rise to the right. Ultimately, the most it hazarded was the observation that “we feel it is” “founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action”[17]—by which it evidently meant the Due Process Clause. But whatever rights this clause protects, the right to an abortion is plainly not among them.

The reason for this is simple: The text of the Fourteenth Amendment does not even hint at such a right, and the generation that adopted the Fourteenth Amendment overwhelmingly banned the practice of elective abortion. By the time the Fourteenth Amendment was ratified in 1868, 30 of the 37 states in the Union had superseded the common law prohibition on abortion by adopting criminal statutes banning elective abortions—and 27 of those 30 statutes applied even before quickening, “the first recognizable movement of the fetus in utero.”[18] That includes 25 of the 30 states that had voted to ratify the Fourteenth Amendment by the end of 1868.[19] It is inconceivable that the same generation of Americans who enacted and enforced outright bans on abortion in overwhelming numbers nonetheless understood the text of the landmark constitutional amendment they adopted to guarantee a right to that very procedure.

B. Roe also gestured towards the view that the right it discovered was protected by the Ninth Amendment.[20] But whether or not the Ninth Amendment confers, and authorizes judicial enforcement of, any substantive unenumerated rights, a right to an abortion was clearly not one of them.

Like the generation that ratified the Fourteenth Amendment, the Founders understood abortion to be unlawful. Blackstone explained that the killing of an unborn child “in [the mother’s] womb” was “a very heinous misdemeanor.”[21] To be sure, Blackstone described this rule as applying once “a woman is quick with child.”[22] But “at all times, the common law disapproved of abortion as malum in se and sought to protect the child in the womb from the moment his living biological existence could be proved.”[23]

C. In addition to being plainly and egregiously wrong, Roe’s reasoning is generally acknowledged to be unprincipled.

Roe’s resort to privacy rights that “have materialized like holograms from the ‘emanations and penumbras’”[24] formed by the Bill of Rights, has been widely decried as “judicial legislation completely cut loose from any pretense of textual justification.”[25] John Hart Ely famously derided Roe as “bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.”[26] Many other scholars have concurred.[27]

Indeed, Roe has given rise to a cottage industry among pro–choice legal academics: penning faux opinions in Roe that attempt to provide more plausible justifications for the Court’s decree. So popular has this sub–genre become that there is an entire book dedicated to the subject.[28]

The judicial impression of Roe’s reasoning has not been more favorable. Justices have repeatedly pointed out Roe’s fatal analytical flaws.[29] And no Justice on the Court, save Roe’s author, has written in defense of Roe’s actual reasoning.

II.        Casey’s Reaffirmation of Roe’s Supposed “Central Holding” Was Egregiously Wrong.

Like Roe, the decision in Casey is demonstrably and grievously wrong. As with Roe, a full discussion of Casey’s errors could fill many pages, so we confine our discussion to a few of the most significant ones.

A. Casey went wrong from the beginning by failing to acknowledge the gravity of Roe’s errors. The stare decisis inquiry depends in part on whether “the prior decision is not just wrong, but grievously or egregiously wrong,”[30] and as just described, Roe surely qualifies. But while the Casey plurality candidly acknowledged “the reservations [some] of us may have in reaffirming the central holding of Roe,”[31] it never faced up to the seriousness of Roe’s widely acknowledged flaws.

Nor does anything Casey say meaningfully fill Roe’s gaping analytical holes. Like Roe, Casey simply does not grapple with the undisputed fact that 30 out of 37 States criminalized abortion when the Fourteenth Amendment was adopted—27 of them from the beginning of pregnancy onward.

B. The new doctrinal framework Casey erects in place of Roe’s trimester–based schema is also seriously flawed. Perhaps most fundamentally, while Casey appears to draw the critical line at “viability,” from Roe to today, “[e]xactly why [viability] is the magic moment” has been a mystery.[32] After all, if a State’s interest in protecting prenatal life is “compelling after viability,” then it “is equally compelling before viability.”[33] Casey’s naked conclusion that “viability marks the earliest point at which the State’s interest in fetal life is constitutionally adequate”[34] is asserted as though it is self–evident, but it simply does not follow from the premises. Just as Laurence Tribe observed of Roe’s similar nondefense of the viability line, “[o]ne reads the Court’s explanation several times before becoming convinced that nothing has inadvertently been omitted.”[35]

C. Rather than meaningfully defend Roe on the merits, Casey principally rests its reaffirmation of Roe on the prudential stare decisis factors. But none of these other factors justified retaining Roe; and Casey’s misapplication of those factors was far from a “garden–variety error.”[36]

With respect to three of the traditional stare decisis factors—whether the precedent is “unworkable,” and whether subsequent legal or factual developments have undermined its foundations—Casey’s discussion is remarkably cursory.[37] And with respect to the remaining factor—reliance interests—Casey acknowledged that traditional considerations of reliance had little force in this context because “reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions.”[38]

Instead, Casey created an altogether novel category of “reliance,” grounded in the “economic and social developments” that have occurred since Roe.[39] “[P]eople have organized intimate relationships and made choices that define their views of themselves and their places in society”[40] based on Roe. What this means is known for sure only by its authors, but whatever it means the Court has consistently insisted on a showing of more concrete forms of reliance when addressing stare decisis outside the abortion context.[41] And with good reason. If “economic and social developments”[42] that have taken place after a prior decision sufficed then the element of reliance would always be satisfied and the concept would be emptied of meaning. No doubt “economic and social developments” premised on the continued lawfulness of race–based segregation took place in the 58 years between Plessy v. Ferguson and Brown v. Board of Education; and no doubt many white southerners “made choices that define[d] their views of themselves and their places in society”[43] based on the institution. But that did not give the Brown Court any pause before restoring the Fourteenth Amendment’s promise of equal protection.

Roe, according to Casey, has also facilitated “[t]he ability of women to participate equally in the economic and social life of the Nation.”[44] But Casey offered no meaningful evidence that it was abortion rather than other factors—such as women’s “determination to obtain higher education and compete with men in the job market”[45]—that is responsible for their welcome advancement in the last 50 years. To the contrary, evidence indicates that women’s social advancement began several decades before Roe and is not correlated with abortion rates.[46] And rather than abortion becoming ever more entrenched in American life, Americans in fact have fewer abortions per capita today than before Roe was decided.[47]

Indeed, some pro–choice scholars have argued that Roe has to some extent hindered women’s equality, by “legitimat[ing] . . . the lack of public support given parents in fulfilling their caregiving obligations,” with especially dire consequences for the “woman who is poor and chooses to parent.”[48] Moreover, Casey says nothing about the harm to women’s equality inflicted by the free availability of sex–selective abortions—a phenomenon that is pervasive and widely acknowledged in other countries[49] and also appears to be common in some communities in the United States.[50] The Court need not assess or quantify this harm, but it must be noted that Roe’s constitutional right to abortion on demand plainly has done nothing to secure the equal social and political participation of millions of unborn human females, some unknown portion of which were aborted because of their sex.

* * *

Roe and Casey are thus wrong—demonstrably and egregiously wrong –- and were wrong from day one. That arguably should suffice to justify their repudiation.

In his concurring opinion in Gamble v. United States, Justice Thomas articulated an approach to stare decisis under which, “if the Court encounters a decision that is demonstrably erroneous . . . the Court should correct the error, regardless of whether other factors support overruling the precedent.”[51] That view, Justice Thomas urged, “follows directly from the Constitution’s supremacy over other sources of law—including our own precedents,”[52] and it is also consistent with “the nature of the ‘judicial Power’ vested in the federal courts,”[53] which “is not the power to ‘alter’ the law; it is the duty to correctly ‘expound’ it.”[54]

There is much to be said for this view. All acknowledge that application of the traditional stare decisis factors is far from “mechanical,”[55] and their subjective nature creates the risk, often realized, that judges may apply the doctrine to protect those decisions they favor on policy grounds but offer no refuge to those precedents they dislike. Moreover, given “the Constitution’s supremacy over . . . [the Court’s] own precedents,”[56] it is paradoxical that the Court should demand a “special justification”[57] before correcting a demonstrably wrong decision, rather than a “special justification” for continuing to adhere to a decision it has concluded is in error.

Ultimately, however, the debate over the correct approach to stare decisis is beside the point, for the special justifications for overruling Roe and Casey are overwhelming.

III.      The Other Stare Decisis Factors Support Overruling Roe and Casey.

The other stare decisis factors the Court has considered also demonstrate that Roe and Casey should be overruled. Indeed, by every measure, it is difficult to imagine a constitutional precedent less worthy of adherence than Roe and Casey.

A. Begin with the role of stare decisis in protecting against upsetting “detrimentalreliance”[58]—the frustration of transactions or conduct premised upon precedent in a way that leaves those involved “worse off than . . . [they] would have been had . . . the mistaken earlier ruling . . . never occurred.”[59] Because this type of reliance generally occurs where overruling would inflict a “broad upheaval of private economic rights,”[60] reliance interests “are at their acme in cases involving property and contract rights.”[61]

There is nothing like this here. Of course, many Americans hope and expect that Roe will not be overruled, but the law does not protect this type of “mere expectancy,”[62] or else every precedent would create reliance interests. And while the abortion industry could see its profits suffer in some States if Roe is overruled, the fact that abortion providers “may view [the continued rule of Roe and Casey] as an entitlement does not establish the sort of reliance interest that could outweigh the countervailing interest”[63] in correcting grave error.

Moreover, any assertion of reliance “ignores the checkered history” of the Court’s abortion–rights jurisprudence.[64] While Casey purported to reaffirm Roe’s “central holding,”[65] it simultaneously interred the great bulk of Roe’s doctrinal framework[66] and overruled several post–Roe abortion decisions.[67] Nor did the twists and turns in abortion rights jurisprudence end with Casey.[68] This vacillation diminishes any legitimate expectation that Roe and Casey will apply in perpetuity.

The repeated calls by justices of the Court to overrule Roe likewise undermine any reliance.[69] The Nation has “been on notice for years regarding the Court’s misgivings about” Roe.[70]

B. Next, “related principles of law” have “developed” in the last three decades in a way that has rendered Roe and Casey increasingly isolated.[71] In the past several decades, the Court has frequently approached novel or monumental questions of constitutional law with an approach that hews closely to the Constitution’s text, history, and tradition. Perhaps the best exemplar of this approach is District of Columbia v. Heller.[72] The first decision from the Court to seriously examine the Second Amendment, Heller was firmly rooted in the original meaning and historical understanding of that provision’s text. The Court has increasingly taken a similar approach to cases involving the Constitution’s structural protections.[73]

In the past several years the Court has also frequently worked to narrow or replace subjective and manipulable balancing tests with more rule–like doctrines grounded in text, history, and tradition.[74] As Justice Alito noted last Term, the Court’s more recent opinions “respect the primacy of the Constitution’s text,”[75] as well as the Nation’s history and traditions. The judicial lawmaking style epitomized by Roe is increasingly out of place in modern constitutional case law.

Roe and Casey are in tension with the Court’s larger jurisprudence in another way as well, as they have caused distortions in other doctrinal areas. The line of First Amendment cases beginning with Hill v. Colorado has sanctioned limits on abortion–related speech “in stark contradiction of the constitutional principles . . . appl[ied] in all other contexts.”[76] The majority in Whole Woman’s Health reached the merits of the constitutional challenge only by “disregard[ing] basic rules” of res judicata “that apply in all other cases.”[77] And the plurality in June Medical granted abortion providers third–party standing to challenge, on behalf of their patients, regulations designed to protect those patients’ health and safety, contrary to the rule that “third–party standing is not appropriate where there is a potential conflict of interest.”[78] The fact that Roe and Casey have repeatedly led to such incoherent “jurisprudential consequences,”[79] is an additional reason to overrule them.

C. Apart from these legal developments, “facts have so changed, or come to be seen so differently”[80] since Roe and Casey were decided as to have significantly sapped those decisions of whatever residual force they might be thought to have.

Roe recognized that whether “life begins at conception and is present throughout pregnancy” was of pivotal importance, but it asserted that “at this point in the development of man’s knowledge” medical science had been “unable to arrive at any consensus” on the issue.[81] Roe thus proceeded on the assumption that life “as we recognize it” “does not begin until live birth.”[82] This “unsupported empirical assumption” has been significantly undermined by subsequent developments.[83]

It is now clear that an unborn fetus is not merely “potential life,” but is a “a living organism while within the womb, whether or not it is viable outside the womb.”[84] As a recent, exhaustive review of the scientific literature concludes, “[t]he scientific evidence clearly indicates that a one–cell human organism, the zygote, forms immediately at fusion of sperm and egg. From a scientific perspective, this single cell is inarguably a complete and living organism; i.e. a member of the human species at the earliest stage of natural development.”[85]

Further, in 1973—and, to some extent, even in 1992—it was widely assumed that an unborn human being had no ability to sense and experience pain.[86] Today, by contrast, there is a growing scientific consensus that the unborn can feel pain as early as 12 weeks gestation.[87] These scientific advances further undermine Roe’s underpinnings.

D. Finally, consider the “practical workability” of the precedent in question.[88] The overarching standard established by Casey—whether a restriction “imposes [an] undue burden on a woman’s abortion right”[89]—is so subjective that it has proven incapable of guiding constitutional analysis. That can surprise no one: the adjective “undue” simply means “[e]xcessive or unwarranted.”[90] The phrase effectively takes the conclusion of the constitutional inquiry and costumes it as the constitutional standard. The “undue burden” test—which was “plucked from nowhere”[91]—is thus an “ultimately standardless”[92] standard, that turns entirely on “a judge’s subjective determinations” and seems designed for the purpose of “engender[ing] a variety of conflicting views.”[93]

The last three decades have borne out Chief Justice Rehnquist’s concerns. The authors of the joint opinion disagreed even among themselves on the correct application of Casey in Stenberg and again in Gonzales. And consider merely a handful of examples from the lower courts: they have split over whether parental notification requirements that lack a judicial bypass procedure constitute an undue burden.[94] They have differed over the constitutionality of laws that bar doctors from performing abortions for certain reasons, such as the unborn child’s diagnoses with Down syndrome.[95] And they have divided over the constitutionality of requirements that physicians make certain disclosures before administering an abortion.[96] These conflicts bespeak the fundamentally ad hoc and standardless judicial inquiry that the undue burden standard forces courts to undertake.

Perhaps most critically, the lower courts—and even the Court—have struggled without success to determine what the “undue burden” test even means. As laid bare by the dueling opinions in Whole Woman’s Health, this confusion stems from Casey itself. The plurality in Casey equated the “undue burden” inquiry with asking whether the challenged law places “a substantial obstacle in the path of a woman seeking an abortion,”[97] without any inquiry into the law’s benefits.[98] The majority in Whole Woman’s Health, however, read Casey differently, as requiring “that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.”[99]

When the Court reconsidered the matter in June Medical, it brought more darkness than light. The plurality insisted, again, that the “undue burden” inquiry required a balancing of burdens against benefits,[100] but the Chief Justice’s concurrence expressly disclaimed any such “weighing of costs and benefits.”[101] And because the four dissenters took the Chief Justice’s view, “five Members of the Court” rejected a cost–benefit reading of Casey,[102] such that “no five Justices [could] agree on the proper interpretation of [the Court’s] precedents.”[103]

Predictably, the divisions within the Court over the proper reading of the “undue burden” test have led to a parallel division in the lower courts.[104] All told, 30 years after Casey the Court’s “abortion jurisprudence remains in a state of utter entropy.”[105]

Casey’s viability line has also proven indeterminate and incoherent. For starters, and as Casey itself acknowledged, viability is a contingent and arbitrary line that depends on “advances in neonatal care.”[106] While Casey pegged the date “at 23 to 24 weeks,”[107] viability “is inherently tied to the state of medical technology that exists whenever particular litigation ensues,”[108] and as a result “will only increase” with further “[m]edical and scientific advances,” rendering the standard “even less workable in the future.”[109] Even today, viability varies from case to case; it may generally occur around 24 weeks gestation, but the most premature “viable” newborn so far—born at just 21 weeks and two days—recently celebrated his first birthday.[110] And determining precisely when gestation began in any given case is a matter of guesswork.

Moreover, while Casey assured States that upon viability their interest in prenatal life could “be the object of state protection that now overrides the rights of the woman,”[111] some cases have interpreted Casey’s exception barring post–viability restrictions where “the life or health of the mother is . . . at stake,”[112] so expansively as to largely vitiate the Court’s assurances. [113]

The short of it is this: 30 years of judicial experimentation with Casey’s undue–burden framework have confirmed Chief Justice Rehnquist’s prediction that it would “present[ ] nothing more workable than the trimester framework which it discard[ed].”[114] As a consequence, “[the] Court’s abortion jurisprudence has failed to deliver the principled and intelligible development of the law that stare decisis purports to secure.”[115]

IV.      Three Decades of Upheaval and Controversy over Abortion Rights Have Conclusively Shown that Casey’s Call for a Halt to the National Abortion Debate Is a Complete Failure.

A candid assessment of the very same “prudential and pragmatic considerations” cited by Casey,[116] thus shows that those cases should be repudiated. But while Casey briefly rehearsed the stare decisis factors just discussed,[117] the dominant considerations that appear to have animated the Casey plurality are instead set forth in the concluding section of the joint opinion’s discussion of stare decisis: the special precedential force of the rare case, like Roe, that “calls the contending sides of a national controversy to end their national division” and the institutional concern that owning up to Roe’s errors would come “at the cost of both profound and unnecessary damage to the Court’s legitimacy, and to the Nation’s commitment to the rule of law.”[118] But these same considerations today affix the final seal on the warrant for overruling Roe.

A. Roe’s call did not so much resolve the national debate over abortion as supercharge it. As Justice Scalia observed in his dissent in Casey, “Roe fanned into life an issue that has inflamed our national politics … ever since.”[119] The ensuing three decades have amply vindicated Justice Scalia’s prediction that Casey’s failure to overturn Roe would perpetuate the firestorm.[120] The abortion issue remains as contentious and divisive as ever. Indeed, between 1995 and 2021, the share of Americans who describe themselves as pro–life jumped from 33 to 47 percent.[121] A total of 28 States, moreover, have “sought a federal constitutional amendment—either proposed by a constitutional convention or by Congress—that would prohibit abortion or restore the states’ authority to do so.”[122]

That enduring controversy refutes any suggestion that Roe should be entitled to some sort of “super–precedential”[123] force. This “super–precedent” idea has no basis in law. The Court has not hesitated to overrule even landmark decisions that had previously been reaffirmed without the slightest hint that it had to overcome some sort of “super” precedential weight. Plessy v. Ferguson, for example, was reaffirmed in Chiles v. Chesapeake & O. Ry. Co.,[124] McCabe v. Atchison, Topeka & Santa Fe Ry. Co.,[125] and Gong v. Rice,[126] before Brown finally (and correctly) buried it.

Moreover, even scholars who believe as a descriptive matter that some precedents are practically “immune from judicial overruling” concede that “a decision as fiercely and enduringly contested as Roe v. Wade has acquired no immunity from serious judicial reconsideration.”[127]

Casey lamented that “19 years after our holding” in Roe, “that definition of liberty is still questioned.”[128] It is no less questioned after another 29 years. Even in 1992, a student of history could have doubted the ability—or legitimate authority—of the Court “to resolve the sort of intensely divisive controversy reflected in Roe.”[129] Today there can be no doubt that the effort has failed.

B. Roe’s attempt, and then Casey’s, to resolve the national division over abortion has failed for any number of reasons, but surely one of them is the widespread belief that the decisions are fundamentally illegitimate exercises of judicial power. It is thus ironic that Casey found adherence to Roe’s “imperative” to preserve both “the Court’s legitimacy” and “the Nation’s commitment to the rule of law.”[130] In so doing, Casey elevated Roe above the Constitution itself as the rule of law.

It is for this reason that a great many Americans have refused to accept the legitimacy of Roe and Casey. As the Casey plurality wrote, again ironically, “the Court’s legitimacy depends on making legally principled decisions” whose “principled character is sufficiently plausible to be accepted by the Nation.”[131] The plurality penned these words to justify its refusal “to overrule [Roe] under fire,”[132] but it is the Court’s creation of a constitutional abortion right that has failed Casey’s “principled justification” test and, for that reason, will never receive widespread acceptance by the Nation.

C. The enduring debate over Roe’s legitimacy leads us, finally, to a far–reaching consequence of the decision that cannot be ignored: the way in which Roe has not only intensified America’s political divisions over abortion but perverted the very institutions and mechanisms that are meant to resolve them.

The story of much of the dysfunction in American politics over the last 50 years can be told through the prism of Roe. The difficulty is not only that Americans are intractably divided over the abortion issue, but that the views of each side are extraordinarily intense. Public opinion polls have consistently showed that around half of Americans view the issue as either extremely or very important.[133] Because of the Court’s decision in Roe, however, the only place where the political energy over this issue can realistically be channeled is the debate over Supreme Court appointments. Thus in 2016, for example, 26% of Americans who voted for Donald Trump—and 18% of voters for Hillary Clinton—listed appointments to the Court as the most important factor in their vote.[134]

Focusing all of the political activism over the abortion issue on judicial selection has resulted, inevitably, in the poisoning of the process. For much of the 20th century prior to Roe, nominees to the Court were confirmed largely without controversy.[135] As the battle over Roe began to emerge as a central issue in the appointments process, however, these dynamics changed dramatically: Every Supreme Court nominee since Justice Stevens in 1975 has been explicitly asked about his or her views on Roe v. Wade,[136] and the judicial confirmation process has become increasingly divisive. There can be no doubt that Roe has significantly contributed to the deterioration of the process.

* * *

Nearly half a century into its effort “to end [the] national division”[137] over abortion, it is time for the Court to admit that the effort has failed.

 

 

[1] This Article is adapted from the Brief of Amicus Curiae Ethics and Public Policy Center in Support of Petitioners and Reversal filed in Dobbs v. Jackson Women’s Health Organization, No. 19-1392, available at: https://www.supremecourt.gov/DocketPDF/19/19-1392/185234/20210729114228086_19-1392%20Amicus%20Brief%20of%20Ethics%20and%20Public%20Policy%20Center.pdf.

[2] 60 U.S. (19 How.) 393 (1857)

[3] Ramos v. Louisiana, 140 S. Ct. 1390, 1414 (2020) (internal citations omitted) (Kavanaugh, J., concurring) (first referencing Brown v. Board of Education, 347 U.S. 483 (1896); and then referencing Plessy v. Ferguson, 163 U.S. 537 (1896)).

[4] John T. Noonan, Jr., The Hatch Amendment and the New Federalism, 6 Harv. J.L. & Pub. Pol’y 93 (1982); see also Laurence H. Tribe, Foreword: Toward A Model of Roles in the Due Process of Life and Law, 87 Harv. L. Rev. 1, 2 (1973) (explaining that after Roe “no abortion law in the United States remained valid”); Nathan S. Chapman & Michael W. McConnell, Due Process as Separation of Powers, 121 Yale L.J. 1672, 1797 (2012) (“Roe … effectively invalidated the then-operative laws of all fifty states.”).

[5] Planned Parenthood v. Casey, 505 U.S. 833, 867 (1992)

[6] Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. Rev. 375, 381 (1985).

[7] Casey, 505 U.S. at 867.

[8] Id. at 869.

[9] Id. at 844.

[10] Id. (emphasis added)

[11] Pearson v. Callahan, 555 U.S. 223, 233 (2009).

[12] Agostini v. Felton, 521 U.S. 203, 235 (1997).

[13] See Ramos v. Louisiana, 140 S. Ct. 1390, 1411 (2020) (Kavanaugh, J., concurring) (“[I]n just the last few Terms, every current member of this Court has voted to overrule multiple constitutional precedents.”).

[14] Janus v. AFSCME, 585 U.S. __, 138 S. Ct. 2448, 2479 (2018).

[15] Ramos, 140 S. Ct. at 1414 (Kavanaugh, J., concurring).

[16] Roe v. Wade, 410 U.S. 113, 152 (1973).

[17] Id. at 153.

[18] Id. at 132; see James S. Witherspoon, Reexamining Roe: Nineteenth-Century Abortion Statutes and the Fourteenth Amendment, 17 St. Mary’s L.J. 29, 33-34 & nn. 15, 18 (1985) (collecting sources).

[19] Id. at 33.

[20] Id. at 153.

[21] 1 William Blackstone, Commentaries 125-26 (1765).

[22] Id. at 125.

[23] Robert M. Byrn, An American Tragedy: The Supreme Court on Abortion, 41 Fordham L. Rev. 807, 816 (1973).

[24] Laurence Tribe, American Constitutional Law 893 (1978).

[25] Michael Stokes Paulsen, The Worst Constitutional Decision of All Time, 78 Notre Dame L. Rev. 995, 1014 (2003).

[26] John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920, 947 (1973).

[27] See, e.g., Akhil Reed Amar, Foreword: The Document and the Doctrine, 114 Harv. L. Rev. 26, 110 (2000) (“In the year 2000, it is hardly a state secret that Roe’s exposition was not particularly persuasive, even to many who applauded its result.”); Philip Bobbitt, Constitutional Fate 157 (1982) (arguing that “the universal disillusionment with Roe v. Wade can be traced to the unpersuasive opinion in that case” (footnote omitted)); Archibald Cox, The Role of the Supreme Court in American Government 113-14 (1976) (Roe “read[s] like a set of hospital rules and regulations” that “[n]either historian, layman, nor lawyer will be persuaded … are part of … the Constitution”).

[28] Jack Balkin, ed., What Roe v. Wade Should Have Said:  The Nation’s Top Legal Experts Rewrite America’s Most Controversial Decision (2005).

[29] See infra, Part III.A.

[30] Ramos v. Louisiana, 140 S. Ct. 1390, 1414 (2020) (Kavanaugh, J., concurring).

[31] Planned Parenthood v. Casey, 505 U.S. 833, 853 (1992)

[32] Ely, supra, at 924.

[33] Webster v. Reproductive Health Servs., 492 U.S. 490, 519 (1989) (plurality opinion).

[34] Casey, 505 U.S. at 860.

[35] Laurence H. Tribe, Foreword: Toward A Model of Roles in the Due Process of Life and Law, 87 Harv. L. Rev. 1, 4 (1973).

[36] Ramos v. Louisiana, 140 S. Ct. 1390, 1414 (2020) (Kavanaugh, J., concurring).

[37] Casey, 505 U.S. at 855-60.

[38] Id. at 856.

[39] Id.

[40] Id.

[41] See, e.g., Ramos, 140 S. Ct. at 1409; Arizona v. Gant, 556 U.S. 332, 349 (2009); Payne v. Tennessee, 501 U.S. 808, 828 (1991).

[42] Casey, 505 U.S. at 856.

[43] Id.

[44] Id.

[45] Id. at 957 (Rehnquist, C.J., dissenting in part)

[46] See Brief of 240 Women Scholars and Professionals, and Prolife Feminist Organizations in Support of Petitioners, Dobbs v. Jackson Women’s Health Org., 141 S.Ct. 2619 (2021) (No. 19-1392).

[47] Compare Centers for Disease Control, Abortion Surveillance—United States, 1992 at Table 2, [https://perma.cc/D5RL-ECWX] (13 abortions per 1,000 women in 1972), with Centers for Disease Control, Abortion Surveillance—United States, 2018 at Table 1, [https://perma.cc/BA22-34JH] (11.3 abortions per 1,000 women in 2018).

[48] Robin West, From Choice to Reproductive Justice: De-Constitutionalizing Abortion Rights, 118 Yale L.J. 1394, 1411 (2009).

[49] See Fengqing Chao et al., Systematic assessment of the sex ratio at birth for all countries and estimation of national imbalances and regional reference levels, 116 Proc. Nat’l Acad. Scis. 9303 (2019).

[50] See Douglas Almond & Lena Edlund, Son-biased sex ratios in the 2000 United States Census, 105 Proc. Nat’l Acad. Scis. 5681 (2008).

[51] Gamble v. United States, 139 S. Ct. 1960, 1984 (2019) (Thomas, J., concurring).

[52] Id.

[53] Id. at 1982.

[54] Id. at 1982 (quoting James Madison, Letter from J. Madison to N. Trist (Dec. 1831, in 9 The Writings of James Madison 477 (G. Hunt ed., 1910)); see also Amy Coney Barrett, Stare Decisis and Due Process, 74 U. Colo. L. Rev. 1011 (2003) (explaining the due process concerns raised by stare decisis in some cases).

[55] Lawrence v. Texas, 539 U.S. 558, 577 (2003) (quoting Helvering v. Hallock, 309 U.S. 106, 119 (1940)).

[56] Gamble, 139 S. Ct. at 1984 (Thomas, J., concurring).

[57] Allen v. Cooper, 140 S. Ct. 994, 1003 (2020) (quoting Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 266 (2014)).

[58] Lawrence, 539 U.S. at 577 (emphasis added).

[59] Vikram David Amar, Justice Kagan’s Unusual and Dubious Approach to “Reliance” Interests Relating to Stare Decisis, Verdict (Jun. 1, 2021), https://verdict.justia.com/2021/06/01/justice-kagans-unusual-and-dubious-approach-to-reliance-interests-relating-to-stare-decisis [https://perma.cc/ECQ7-BXYS]; see also Vieth v. Jubelirer, 541 U.S. 267, 306 (2004) (plurality opinion) (stare decisis weakened where “it is hard to imagine how any action taken in reliance upon . . . [the precedent] could conceivably be frustrated”).

[60] Ramos v. Louisiana, 140 S. Ct. 1390, 1409 (2020) (Sotomayor, J., concurring in part).

[61] Payne v. Tennessee, 501 U.S. 808, 828 (1991).

[62] Amar, supra note 60.

[63] Arizona v. Gant, 556 U.S. 332, 349 (2009).

[64] Id. at 350.

[65] Planned Parenthood v. Casey, 505 U.S. 833, 860 (1992).

[66] Id. at 860, 869-78.

[67] Id. at 881-83.

[68] Compare Stenberg v. Carhart, 530 U.S. 914, 930 (2000) (invalidating partial-birth abortion ban), with Gonzales v. Carhart, 550 U.S. 124, 151-67 (2007) (upholding similar law); and compare Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2309-10 (2016) (appearing to revise Casey’s test to require a balancing of burdens and benefits), with June Med. Servs., L.L.C. v. Russo, 140 S. Ct. 2103, 2138 (2020) (opinion of Roberts, C.J.) (rejecting such balancing).

[69] See Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 785 (1986) (White, J., dissenting); Casey, 505 U.S. at 944 (Rehnquist, C.J., dissenting); id. at 979 (Scalia, J., dissenting); Stenberg, 530 U.S. at 980 (Thomas, J., dissenting).

[70] Janus v. AFSCME, 138 S. Ct. 2448, 2484 (2018).

[71] Casey, 505 U.S. at 855.

[72] 554 U.S. 570 (2008).

[73] See, e.g., Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2192 (2020); Edmond v. United States, 520 U.S. 651, 658-65 (1997).

[74] See, e.g., Am. Legion v. Am. Humanist Ass’n, 239 S. Ct. 2067, 2097 (2019) (Thomas, J., concurring); accord id. at 2081-85 (plurality opinion); United States v. Jones, 565 U.S. 400, 404-11 (2012); Crawford v. Washington, 541 U.S. 36, 42-56 (2004); Apprendi v. New Jersey, 530 U.S. 466, 476-90 (2000).

[75] Fulton v. City of Philadelphia, Pa., 141 S. Ct. 1868, 1894 (2021) (Alito, J., concurring).

[76] Hill v. Colorado, 530 U.S. 703, 742 (2004) (Scalia, J., dissenting).

[77] Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2330 (2016) (Alito, J., dissenting).

[78] June Med. Servs. v. Russo, 140 S. Ct. 2103, 2167 (2020) (Alito, J., dissenting).

[79] Ramos v. Louisiana, 40 S. Ct. 1390, 1415 (2020) (Kavanaugh, J. concurring).

[80] Planned Parenthood v. Casey, 505 U.S. 833, 855 (1992).

[81] Roe v. Wade, 410 U.S. 113, 159 (1973).

[82] Id. at 160-61.

[83] See Janus v. AFSCME, 138 S. Ct. 2448, 2483 (2018).

[84] Gonzales v. Carhart, 550 U.S. 124, 146-47 (2007).

[85] Maureen L. Condic, When Does Human Life Begin? The Scientific Evidence and Terminology Revisited, 8 U. St. Thomas J.L. & Pub. Pol’y 44, 70 (2013); see also Hana R. Marsden et al., Model systems for membrane fusion, 40 Chem. Soc’y Rev. 1572, 1572 (2011) (“The fusion of sperm and egg membranes initiates the life of a sexually reproducing organism.”); Enrica Bianchi et al., Juno is the egg Izumo receptor and is essential for mammalian fertilization, 24 Nature 483, 483 (2014) (“Fertilization occurs when sperm and egg recognize each other and fuse to form a new, genetically distinct organism.”).

[86] Stuart W.G. Derbyshire & John C. Bockmann, Reconsidering fetal pain, 46 J. Med. Ethics 3, 3 (2020).

[87] Id. at 6; see also American College of Pediatricians, Fetal Pain: What is the Scientific Evidence? at 1, 7 (2021), https://acpeds.org/assets/Fetal-Pain-Position-Statement-(2).pdf [https://perma.cc/R8EE-RG6R] (concluding that “a large body of scientific evidence demonstrates that painful or noxious stimulation adversely affects immature human beings, both before and after birth,” “as early as 12 weeks gestation (and possibly earlier)”).

[88] Planned Parenthood v. Casey, 505 U.S. 833, 854 (1992).

[89] Id. at 880.

[90] Undue, Black’s Law Dictionary (8th ed., 2004).

[91] Casey, 505 U.S. at 965 (Rehnquist, C.J., dissenting in part).

[92] Id. at 987 (Scalia, J., dissenting in part).

[93] Id. at 965 (Rehnquist, C.J., dissenting in part).

[94] Compare Planned Parenthood v. Camblos, 155 F.3d 352, 367 (4th Cir. 1998) (en banc), with Planned Parenthood v. Adams, 937 F.3d 973, 985-90 (7th Cir. 2019), aff’d on reconsideration sub nom. Planned Parenthood v. Box, 991 F.3d 740 (7th Cir. 2021), and Planned Parenthood v. Miller, 63 F.3d 1452, 1460 (8th Cir. 1995).

[95] Compare Preterm-Cleveland v. McLoud, 994 F.3d 512, 520-35 (6th Cir. 2021), with Little Rock Family Planning Servs. v. Rutledge, 984 F.3d 682, 688-90 (8th Cir. 2021).

[96] Compare EMW Women’s Surgical Ctr. v. Beshear, 920 F.3d 421, 430-32 (6th Cir. 2019), and Planned Parenthood v. Rounds, 686 F.3d 889, 893-906 (8th Cir. 2012), with Stuart v. Camnitz, 774 F.3d 238, 244-55 (4th Cir. 2014).

[97] Planned Parenthood v. Casey, 505 U.S. 833, 877 (1992).

[98] See Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2324 (2016) (Thomas, J., dissenting).

[99] Id. at 2309 (majority opinion).

[100] June Medical Servs., L.L.C. v. Russo, 140 S. Ct. 2103, 2120 (2020).

[101] Id. at 2136 (Roberts, C.J., concurring).

[102] Id. at 2182 (Kavanaugh, J., dissenting),

[103] Id. at 2152 (Thomas, J., dissenting).

[104] Compare Preterm-Cleveland v. McCloud, 994 F.3d 512, 524 (6th Cir. 2021) (en banc) (applying the Chief Justice’s concurrence); and Hopkins v. Jegley, 968 F.3d 912, 915 (8th Cir. 2020) (same), with Reproductive Health Servs. v. Strange, No. 17-13561, 2021 WL 2678574, at *12 (11th Cir. June 30, 2021) (applying plurality opinion); see also Planned Parenthood of Ind. & Ky. v. Box, 991 F.3d 740, 741-42 (7th Cir. 2021) (finding the Chief Justice’s concurrence “controlling” but not those parts identified as that opinion’s “dicta,” including “its stated reasons for disagreeing with portions of the plurality opinion”).

[105] June Medical, 140 S. Ct. at 2152 (Thomas, J., dissenting).

[106] Planned Parenthood v. Casey, 505 U.S. 833, 860 (1992).

[107] Id.

[108] City of Akron v. Akron Ctr. for Reproductive Health, Inc., 462 U.S. 416, 458 (1983) (O’Connor, J., dissenting).

[109] MKB Mgmt. Corp. v. Stenehjem, 795 F.3d 768, 774-75 (8th Cir. 2015).

[110] Sydney Page, A newborn weighed less than a pound and was given a zero percent chance of survival. He just had his first birthday, Wash. Post, (June 23, 2021, 6:00 AM), https://wapo.st/2SJ1AvH.

[111] Casey, 505 U.S. at 870.

[112] Id. at 872.

[113] See, e.g., Women’s Med. Pro. Corp. v. Voinovich, 130 F.3d 187, 209 (6th Cir. 1997) (interpreting the Court’s precedents as requiring an exception for “severe mental or emotional harm”).

[114] Casey, 505 U.S. at 966 (Rehnquist, C.J., dissenting in part).

[115] June Medical Servs., L.L.C. v. Russo, 140 S. Ct. 2103, 2152 (2020) (Thomas, J., dissenting) (quotation marks omitted).

[116] Casey, 505 U.S. at 854.

[117] Id. at 846, 855-61.

[118] Id. at 867-69.

[119] 505 U.S. at 995 (Scalia, J., dissenting).

[120] See id.

[121] Abortion, Gallup, https://news.gallup.com/poll/1576/abortion.aspx [https://perma.cc/Z5TL-E5BZ].

[122] Paul B. Linton, Overruling Roe v. Wade: Lessons from the Death Penalty, 48 Pepp. L. Rev. 261, 275 (2021).

[123] Richmond Med. Ctr. v. Gilmore, 219 F.3d 376, 376 (4th Cir. 2000) (Luttig, J., concurring).

[124] Chiles v. Chesapeake & O. Ry. Co., 218 U.S. 71, 77 (1910).

[125] McCabe v. Atchison, Topeka & Santa Fe Ry. Co., 235 U.S. 151, 160 (1914).

[126] Gong v. Rice, 275 U.S. 78, 86 (1927).

[127] Richard H. Fallon, Jr., Constitutional Precedent Viewed Through the Lens of Hartian Positivist Jurisprudence, 86 N.C. L. Rev. 1107, 1116 (2008); see also Amy Coney Barrett, Precedent & Jurisprudential Disagreement, 91 Tex. L. Rev. 1711, 1735 n.141 (2013) (collecting citations).

[128] Planned Parenthood v. Casey, 505 U.S. 833, 844 (1992).

[129] Id. at 866; cf. Dred Scott v. Sandford, 19 How. (60 U.S.) 393 (1857).

[130] Casey, 505 U.S. at 869.

[131] Id. at 865-66.

[132] Id. at 867.

[133] Karlyn Bowman & Heather Sims, Abortion As An Election Issue 1-2, American Enterprise Institute (Jan. 2016), https://www.aei.org/wp-content/uploads/2016/01/Abortion-as-Election-Issue.pdf (compiling survey data).

[134] Philip Bump, A quarter of Republicans voted for Trump to get Supreme Court picks — and it paid off, Wash. Post (June 26, 2018), https://wapo.st/3qB6Wpa [https://perma.cc/WQ9X-529B].

[135] See Supreme Court Nominations (1789-Present), U.S. Senate, https://www.senate.gov/legislative/nominations/SupremeCourtNominations1789present.htm [https://perma.cc/EY3M-FCM3].

[136] See Paul M. Collins & Lori A. Ringhand, Supreme court confirmation Hearings and Constitutional Change, 122 fig.4.6 (2013); S. Hrg. 115-208 at 76 (2017); S. Hrg. 115-545, pt. 1 at 75 (2018); Barrett Confirmation Hearing, Day 2 Part 1 at 35:30, C-SPAN, Oct. 13, 2020, https://www.c-span.org/video/?476316-1/barrett-confirmation-hearing-day-2-part-1 [https://perma.cc/AKL5-YVB2].

[137] Planned Parenthood v. Casey, 505 U.S. 833, 867 (1992).

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