June 17, 2019 (LifeSiteNews) — With the recent spate of pro-life legislation being passed across America, many people are wondering about the future of the Supreme Court’s 1973 decision in Roe v. Wade. The decision, upheld in 1992’s Planned Parenthood v. Casey, wrote the “right to have an abortion” into our Constitution despite the silence of that document on any such “right.”
The Roe decision is irredeemable; it has been thoroughly criticized even by believers in abortion for its overtly regulatory, policy-making nature. During the writing of it, as Bob Woodward reported in his book on the Court, “The clerks in most chambers were surprised to see the Justices … so openly brokering their decision like a group of legislators[.] … There was something embarrassing and dishonest about this whole process.”
Yet Roe remains on the books. The strongest argument marshaled in its favor is the idea that we should respect the momentum of precedent. (This principle is often called by the Latin term stare decisis.) This was one of three prongs cited by the Court’s opinion in Casey when the justices decided to uphold Roe ― the other two being “the fundamental constitutional questions resolved by Roe, [and] principles of institutional integrity.” Since Roe’s legal analysis is, as we’ll see, deeply flawed, and “institutional integrity” is an even more protean standard than stare decisis, that is the prong that needs an answer.
The principle of stare decisis is less than ironclad. The Court’s ruling in Plessy v. Ferguson (1896) was famously overturned in Brown v. Board of Education (1954). And, significantly, precedent is now a double-edged sword as applied to Roe. Last year, a 5-4 Court handed down a decision that, dealing with the First Amendment, spelled out criteria for overruling precedents that set Roe right in its crosshairs.
The decision was called Janus v. AFSCME, and it concerned public-sector unions in Illinois being allowed to extract union fees from the paychecks of public servants who were non-members of those unions. This had previously been ruled not inconsistent with the First Amendment’s guarantee of the freedom of speech in a case entitled Abood v. Detroit Board of Education (1977). Abood ― the Roe of labor union jurisprudence ― was a case the Court settled in the 1970s; it rested on the books for forty years and was invoked by the unions arguing Janus as an authority that had to be upheld. Last year, the Court reconsidered, and Abood was overruled.
The Court directly addresses the issue of stare decisis in part VI of the Janus opinion, noting that the doctrine is not an “inexorable command” and specifying its criteria for obeying or not: “Our cases identify factors that should be taken into account in deciding whether to overrule a past decision. Five of these are most important here: the quality of Abood’s reasoning, the workability of the rule it established, its consistency with other related decisions, developments since the decision was handed down, and reliance on the decision.” Abood was found lacking in all respects, and looking at Roe will show that that decision is at least as unsalvageable.
The poor quality of Abood’s reasoning is manifest in its constitutional failures, though those are too particular to map directly onto the issues present in Roe. Nevertheless, the final evaluation of Abood’s quality is that “Abood was wrongly decided” and allowed a procedure that “violates the First Amendment” to continue. An assessment at least as damning is inevitable for Roe.
Roe is an allegedly legal opinion ― an opinion about the application of a law ― that is impressively silent on what law it is applying. The above text shows a profound lack of willingness on the part of the Court to anchor its regulatory proscriptions to any single amendment. Rather, the justices cite the generalized “right of privacy” codified in the 1965 ruling Griswold v. Connecticut, which stated, “The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance[.] … Various guarantees create zones of privacy.” Griswold then mentions Amendments 1, 3, 4, 5, and 9.
That “emanations and penumbras” passage has been mocked more than any other passage in American jurisprudence, with the possible exception of the infamous legal reasoning “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” That line was from Anthony Kennedy’s fractured plurality opinion in Planned Parenthood v. Casey, the legal descendant of Roe that strained to preserve the practical result of permitting abortions nationwide even as it rewrote Roe’s legal justification. Roe is a pastiche of constitutional interpretation.
The Janus decision then addresses the “workability of the precedent” set in Abood. As a legal matter, this means that a previous ruling gave clear guidelines for interpreting laws — disregarding whether that decision reflected wise or unwise policy, or even sound or questionable constitutionality. “Workable” means unambiguous, predictable, and clear. Unworkable decisions, meanwhile, are problems because liberty is constricted when people “of common intelligence must necessarily guess at [the law’s] meaning and differ as to its application” (Connally v. General Constr. Co., 1926) and also clog our legal system by inviting “perpetua[l] give-it-a-try litigation,” as Janus quoted the late Justice Scalia predicting.
Abood had articulated a distinction that proved to be fuzzy in practice. Specifically, it purported to allow public-sector unions to exact fees from non-members proportionate to the union’s collective bargaining expenses (these were called “chargeable” expenses) but not exact fees for expenses relevant to political and ideological activity (“nonchargeable”). In the 41 years since Abood was handed down, though, several scenarios had proven that the line between chargeable and nonchargeable expenses afforded unclear direction. Even the unions defending Abood conceded that it suffered from “a vagueness problem.”
What standard is to be applied when considering Roe? Since 1992, the reigning precedent has been what the plurality offered in Casey — namely, the so-called “undue burden” standard. (Indeed, in Box v. Planned Parenthood just last week, the Supreme Court cited the “undue burden” standard twice in its three-page opinion.) As Casey pronounced, “Only where state regulation imposes an undue burden on a woman’s ability to make this decision [to abort her child] does the power of the State reach into the heart of the liberty protected by the Due Process Clause [i.e., do something that we declare is unconstitutional].”
But what makes a burden an “undue” one? In Kennedy’s own words, “a finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”
If that sounds vague, it’s because it is. In 2016, for example, the Supreme Court decided a case out of Texas called Women’s Whole Health v. Hellerstedt. They came to the conclusion that several abortion facility safety regulations passed in the wake of the horror of the Kermit Gosnell news ― including the need to have admitting privileges to a hospital within 30 miles ― constituted an “undue burden.” In what way is that “undue”? Quite simply because “undue burden” is a phrase with no fixed content; it represents a line to be drawn wherever a majority vote of nine thinks it should be drawn.
Thirdly, considering the consistency of Abood with the rest of American jurisprudence, Janus faulted it for being an “outlier,” an “oddity,” and an “anomaly.” Abood suggested that the particular case of public-sector unions required a different legal standard from that used in every other First Amendment scenario; the Court decided that “by overruling Abood, we … bring a measure of greater coherence to our First Amendment law.”
Roe and Casey represent something of an anomaly. The basis the Court ultimately settled on, in Casey, for guaranteeing abortion is the doctrine of “substantive due process.” This begins with the Fourteenth Amendment’s requirement, “nor shall any state deprive any person of life, liberty, or property, without due process of law.” The doctrine then posits that certain liberties are so essential that no process that takes them away could possibly be “due.” Therefore, those liberties (specified not by the Bill of Rights or by a democratically passed law, but by the Court) are constitutionally guaranteed.
Now, substantive due process is alive and well ― it was the legal justification (such as it was) for the famous 2015 ruling Obergefell v. Hodges. But the issue of abortion has a special grace before our high court. Justice Scalia noted in 1994’s Madsen v. Women’s Health Center, Inc. that the Court had an “ad hoc nullification machine” that they “set in motion to push aside whatever doctrines of constitutional law stand in the way of that highly favored practice [abortion],” a criticism he had occasion to reiterate in Hill v. Colorado (2003).
So far as substantive due process is an excuse for justices to elevate their pet issues beyond the reach of our democratic process in the name of liberty and the Constitution, the issue of abortion must be denied this unwarranted status of favor.
Then, just as “factual” developments had “eroded” Abood’s “underpinnings,” the science of embryology and medical practice has thrown the Court’s holdings in Roe and Casey into an unflattering light. Abood was decided when “public-sector unionism was a relatively new phenomenon” and the Court was in a disadvantaged position to appreciate the “political valence” of those unions as an established part of our political landscape.
Similarly, the Courts that decided Roe and Casey felt free to dismiss the humanity of unborn children as “potential human life.” But we now live in a world where children born before 22 weeks of gestation have survived; just last month, a new record was set for the smallest infant ever born, a baby girl who has since left the hospital and is now healthy and at home. The threshold gestation for when a prematurely born child’s survival chance is greater than 50% has been becoming earlier and earlier for the past half-century. There is active growth in the field of prenatal surgery, something that was first realized only in 1981.
Describing that human life as merely “potential” and labeling the conferral of some metaphysical category called “personhood” anywhere but at that life’s beginning is an increasingly untenable position.
The final consideration of stare decisis that the Court addresses and finds outweighed in Janus is that of real-world reliance on the precedent. In Janus, that meant considering that overruling Abood could unfairly disrupt union contracts that had been negotiated with non-member fees taken for granted.
The Court ruled that that consideration “does not carry decisive weight,” given the overwhelming consideration that “it would be unconscionable to permit free speech rights to be abridged in perpetuity in order to preserve contract provisions that will expire on their own in a few years’ time.” The Court then applied the balm that “this is especially so because public-sector unions have been on notice for years regarding this Court’s misgivings about Abood.”
It is easy to imagine this language adapted to address an overturning of Roe: the fate of countless children should not be sealed by an ignorant and badly reasoned decision from 1973 ― especially since individual pregnancies that were undertaken relying on Roe’s guarantee of abortion are similarly temporary and since American women themselves have declared for years that they are “on notice” about Roe’s future.
Janus provided these five criteria as a roadmap for overruling past mistakes, even ones made before half of the U.S. population had been born or the first Star Wars film had premiered. Its explication of the general stare decisis principles that need to be accounted for — and that failed to support Abood — lends itself immediately to the problematic legal chain of abortion decisions, from Roe and Casey to Hill and Hellerstedt.
The Court pronounced in no uncertain terms that “Abood was poorly reasoned. It has led to practical problems and abuse. It is inconsistent with other First Amendment cases and has been undermined by more recent decisions. Developments since Abood was handed down have shed new light on the issue of agency fees, and no reliance interests on the part of public-sector unions are sufficient to justify the perpetuation of the free speech violations that Abood has countenanced for the past 41 years. Abood is therefore overruled.”
The Supreme Court owes it to America to acknowledge that the same is true of Roe and to correct that error.