Not only does the Supreme Court regularly overturn prior precedents, it has established rules for doing so. Here are eight reasons to overturn Roe v. Wade.
With the widespread public furor about whether the Supreme Court will overturn its more-than-landmark 1973 abortion decision in Roe v. Wade, it is necessary to recognize that the Supreme Court’s abortion decisions, in their content and in their judicial methods, are without precedent in American jurisprudential, political, social, cultural, and moral history. For last 48 years—that is, 20 percent of our history—no other issue, public or private, has divided and polarized the country and the Court as its decision in Roe v. Wade.
In its petition to the Supreme Court filed in July, the state of Mississippi has boldly attacked the two fundamental Supreme Court abortion decisions, Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), as “egregiously wrong” because the Constitution, while protecting “aspects of privacy,” does not provide for a “general right of privacy.” In addition, the Court’s line of abortion cases and their standards of review, Mississippi says, have proven to be administratively “unworkable” in state attempts to enact their own abortion laws. And overall, the Court’s abortion decisions have undermined “democratic self-governance,” and thus have “harmed the nation.” The case, Dobbs v. Jackson Women’s Health Organization, has now been set for oral argument on December 1.
This essay expands on some of the arguments enunciated by Mississippi and offers additional rationales for the overturning of Roe. The dominant theme herein is not merely “constitutional” in the sense of case law, but “constitutional” in the sense of the basic premises and practices of American government and common public life.
There are at least eight reasons to overturn Roe v. Wade.
First, there is the sharpest dichotomy, both in the facts and in the law, between what the Supreme Court thinks abortion is and what the state governments think. There is no comparable example in American jurisprudence.
In Roe, Justice Harry Blackmun wrote for the seven justices in the majority, five of whom had been appointed by Presidents Eisenhower and Nixon, that he did not know when human life begins. (He also did not know where in the Constitution the abortion right lay; see below). After purporting to survey legal and medical history back to the ancient Greeks and then forward to the present, he concluded that it was not necessary to resolve that “difficult question.” Later in the opinion, he spoke of an invention of his, the “potentiality of human life.” In the sharpest possible contrast, every state attempt since Roe to limit abortion has been based on the knowledge and assumption that the beginning of life was and is known.
Blackmun said that abortion is about the different “beliefs” of Americans and American institutions about life. He said that “it was the belief” of the ancient Stoics and the contemporary belief of some in both the Jewish and Protestant faiths that “life does not begin until live birth.” He also referred to “the official belief of the Catholic Church” that life begins “from the moment of conception.” In the leading Casey case (below), the Court said that “the life or potential life that is aborted” depends “on one’s beliefs.” Concurring in Casey, Roe author Blackman expressed “my belief” in the “right to reproductive choice.” In the later abortion case, Stenburg v. Carhart (2000), Justice Breyer introduced his opinion for the 5-4 Court overturning the Nebraska ban of partial-birth abortions by saying that “millions of Americans believe that life begins at conception.” On September 3, President Joseph Biden said that that he respects “those who believe life begins at the moment of conception,” but, “I don’t agree.”
Cases in court arise over disputes about “facts.” Science, which does not deal in “beliefs,” has a different perspective about the “facts” of abortion. Abortion kills a separate and distinct human being. The modern sciences of molecular biology and embryology—the facts of which were known in 1973—confirms this universal truth: “Human development begins at fertilization . . . Embryology is concerned with the origin and development of a human being from a zygote to birth…. The zygote is genetically unique.” (Before We Are Born, Essentials of Embryology and Birth Defects, Moore, Persaud, Torchia, 1, 9, 9th edition 2016, 1st edition 1974). But modern science is not needed to prove this. Every pregnant woman in all of human history has known that her baby is separate from herself when around the fifth month her baby spontaneously moves—that is, separately from her own will. Justice Blackmun and the Roe Court majority apparently believed that Stoic mothers had no such bodily perceptions. There is no other example of a court case, or any kind of public controversy, in which the basic and essential “fact” is completely proved both by universal human experience and by science. The Court was ignorant about something that everyone else knows.
Second, not only does the Supreme Court regularly overturn prior precedents, it has established rules for doing so.
Responding to the Supreme Court’s temporary decision in September about the new Texas abortion law enacted this year, President Biden emphasized that Roe has been “precedent for nearly half a century.” At the same time, Speaker Pelosi said that “[i]t’s precedent that establishes Roe v. Wade.” As such, these highest of all government office holders joined their voices in agreement with those in academia and the media.
In fact, Roe itself has been used to overturn precedent. In Bowers v. Hardwick(1986), the 5-4 Court, stating that it did not want to impose “judge-made constitutional law,” upheld state criminalization of sodomy. Seventeen years later in Lawrence v. Texas (2003), the Court, citing Roe among other cases, overturned Bowers and ruled 6-3 that sodomy laws were unconstitutional. Writing for the Lawrence Court, Justice Anthony Kennedy said that Bowers “does not withstand careful analysis . . . and ought not to remain binding precedent.” Lawrence, of course, set the stage for the Court’s constitutional re-definition of marriage in Windsor (2013) and Obergefell (2015).
Among other contemporary examples of the Supreme Court overturning precedent is the 1985 case of Garcia v. San Antonio Transit Auth., in which the Court, with Justice Blackmun writing for the 5-4 majority, overturned the major National League of Cities v. Usery (1976) federalism case by labeling it “unsound in principle and unworkable in practice. In the 2015 criminal sentencing case of Johnson v. United States, Justice Antonin Scalia, writing for the 8-1 majority Court, said that “[t]he doctrine of stare decisis allows us to revisit an earlier decision where experience with its application reveals that it is unworkable.” Whereupon the Court overruled two cases, one from 2007, and another from 2011. In its 5-4 ruling in the Free Speech case of Janus v. AFSCME (2018), overruling Abood v. Detroit Board of Education (1977), Justice Samuel Alito, writing for the Court, concluded that Abood was “poorly reasoned.” In 2018 in the case of South v. Wayfair, a Commerce Clause case, Justice Ruth Bader Ginsburg was one of the five justices in the majority in the decision to overturn Quill v. North Dakota, a 1992 case.
Third, the Roe precedent has already been overturned—by the Court.
The Roe Court rendered “a woman’s decision whether or not to terminate her pregnancy” as a “right of personal privacy.” Nineteen years after Roe, a fractured 5-4 Court in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) changed the constitutional foundation of the abortion right from “privacy” to “liberty.”
Casey’s change in the law of abortion is based on the Court’s own admission in Roe that it did not know where the abortion right came from: “The Constitution does not explicitly mention any right of privacy.” Continuing its admission, the Roe Court said that it did not know “whether” “the right of privacy” is “founded” in the 9th or 14th Amendments. Regardless, it is “broad enough” to “encompass” the decision of a woman “whether or not to terminate her pregnancy.” In Casey, the unusual three-person opinion for the Court opinion jointly authored by Republican appointees Kennedy, Sandra Day O’Connor, and David Souter, held that “the controlling word in this case is liberty.” The abortion decision is “in some critical respects . . . of the same character as the decision to use contraception,” citing its contraception decisions, Griswold (1965) and Eisenstadt (1972). The right of Roe concerned “personal autonomy and bodily integrity,” they said. In Griswold, the Court—as in Roe—had been likewise adrift regarding the source of the constitutional contraceptive right it invented. In that case, the right was said to exist in something it called the “penumbras” of the “specific guarantees in the Bill of Rights.”
After its discussion of the first and second trimesters of pregnancy, the Roe Court, had issued a five-paragraph order—in the style of sample legislation—regulating abortion by trimesters. In explicit repudiation of Roe, the Casey Court announced that “we reject the rigid trimester framework of Roe” and substituted what has remained the standard up to this day: that states may not restrict abortion before “viability” but may do so after viability, as long as a woman at any state of pregnancy retains the absolute right over abortion until birth if she alleges a “threat” to her life or health, including mental health—with the latter having nothing to do with any diagnosed psychological or psychiatric condition but only with what a woman alleges concerning her mental health. And with regard to health and mental health, the Court continued to follow the rule of Roe and its companion case Doe v. Bolton.
Unlike the pending Mississippi case, the validity of Roe was not expressly contested by the Casey plaintiffs, who were seeking only to overturn, inter alia, the parental consent and spousal notification provisions of a new Pennsylvania law. However, the three co-authors were sufficiently provoked by the incessant state challenges to Roe that had caused the Court to deliver eleven major abortion decisions in the nineteen years since 1973 and were obviously made uneasy by the four dissenters who were expressly rejecting Roe that they went into an extended and free-wheeling discourse on jurisprudence, precedence, American society itself, and the role of the Supreme Court in society, and the danger of causing a “loss of confidence in the Judiciary,” if the Court were to overturn Roe. As such, Casey’s meanderings-about in social philosophy resembled the same kind of serpentine visioning that the Court had previously delivered in Roe.
That Roe was essentially “unworkable” and bad precedent had already been alleged by two justices who supported the right to an abortion. In her dissent in the 5-4 Thornburgh (1986) decision, an earlier 1986 case having to do primarily with “informed consent” to abortion, Justice O’Connor, one of the eventual Casey joint authors, said that “the Court’s abortion decisions have already worked a major distortion in the Court’s constitutional jurisprudence” and had an “institutionally debilitating effect.” Those decisions, with their “unworkable scheme for constitutionalizing the regulation of abortion,” have created an “expansive role” for which “the Court is not suited.” Seven years later, however, these criticisms by O’Connor did not lead her in Casey to abandon, but only to re-calibrate, the abortion right.
Even Justice Ginsburg, when she was a judge on the DC Circuit Court of Appeals, had herself sharply criticized the legal and constitutional basis for Roe: “Roe v. Wade sparked public opposition and academic criticism, in part, I believe, because the Court ventured too far in the change it ordered and presented an incomplete justification for its action.” (“Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade,” North Carolina Law Review 63 (1985): 375-386, at 376.)
Fourth, the basic requirement of standing in court is itself a proof that abortion is not a fit subject for adjudication.
In Roe, the Court, eager to create the abortion right, first had to dispose of what it called the “usual rule” of American jurisprudence: namely, that a plaintiff to have standing in court must be engaged in an actual and continuing controversy, that is, a “case or controversy” under Article III of the Constitution must never be or become “moot” from start to finish. Since plaintiff Roe was no longer pregnant, she should not have been in court. This principle was precisely enunciated by Justice Ginsburg, quoting a previous Supreme Court ruling and speaking for the Court in the unrelated case of Arizonians for Official English v. Arizona (1997): “The requisite personal interest that must exist at the commencement of litigation (standing) must continue throughout its existence (mootness).” In his Roe dissent, Justice Rehnquist called the case “a hypothetical lawsuit.” Abortion is not a suitable and “workable” subject for any court, state or federal; it is a subject for state legislation—and always was until the Supreme Court usurped it.
Fifth, the Court has explicitly stated that Roe is of the same society-changing status in American jurisprudence as Brown v. Board of Education.
In Casey, the three co-authors of the Court’s decision compared Roe to Brown as one of “those rare comparable cases” the significance of which “the resolution of the normal cases does not carry.” Cases like Roe and Brown have occurred “only twice in our lifetime,” the Casey Court continued. But, today, the noticeable difference is that at the time of Roe, 19 years after Brown, state and local government as well as private opposition to racial desegregation had essentially been eliminated by acceptance of Brown and by the civil rights acts of the 1960’s. Today, 48 years after Roe, opposition to it is fiercer than ever.
A 2021 US News article, citing research, states that “In the past few years, state legislatures have enacted more than 250 abortion-related laws in 45 states.” And 88.7 percent of those laws restricted access to abortion in some way. USA Today reports that 60 abortion bills have been introduced or passed this year. According to a 2021 study by the Internal Medicine section of the Journal of the American Medical Association (JAMA), “35 states enacted 227 laws restricting access to abortion service,” between January 2017 and November 2020, while “12 states and Washington, D.C enacted 29 laws expanding access to abortion.” That is, in the recent period of almost four years, 47 of the states had the unending controversy of abortion on their legislative agendas. A 2021 Gallup poll found that while 32 percent of respondents replied that abortion should be legal under any circumstances, 48 percent found that it should be legal only under certain circumstances, and 19 percent said that it should be completely illegal. A 2021 Associate Press poll reported that 54 percent of Americans said that abortion should be completely illegal in the third trimester, and an additional 26 percent replied that it should be illegal in most cases.
In Roe, both Blackmun for the Court and William Rehnquist in his dissent pointed out that the laws of 21 states had remained unchanged since 1868, that is, the date of the adoption of the Fourteenth Amendment. In Doe v. Bolton, the companion case to Roe, Blackmun noted that a new, liberal abortion model statute (actually more restrictive than the Roe holding he was promulgating) written by the American Law Institute had been adopted only by one-fourth of the states.
Sixth, In Roe, the Court invented a constitutional right for women only. There is no comparison to any other legal, statutory, or constitutional right.
In Casey, the three co-authors said that “state regulation with respect to the child a woman is carrying will have a far greater impact on the mother’s liberty than on the father’s.” In the later abortion case, Stenberg v. Carhart (2000), Justice Stephen Breyer, joined by Justice Ginsburg, spoke of “a woman’s right to make this difficult and extremely personal decision.” In Roe, Blackmun stated that it is “the rights of the pregnant woman that are at stake.” Writing for the Court in Thornburgh, Roe author Blackmun, citing the “private sphere of individual liberty” of, Griswold and Eisenstadt, among other case, called abortion a “personal, intensely private right.”
Even beyond privacy, a woman’s abortion right has become her above-the-law “autonomous” right. In her dissent for herself and three other justices Gonzalez v. Carhart (2007), in which the 5-4 Court upheld the new federal ban in 2003 on some partial birth abortions, Judge Ginsburg spoke of the essential need for abortion “on a woman’s autonomy to determine her life’s course.”
In its case now in the Supreme Court, Mississippi rightly concedes that the Constitution has “aspects of privacy.” However, in their texts and proper first inferences, the Constitution and the Bill of Rights are concerned with negative individual rights: “no person.” There is no mention or concept of “private” rights. The rights of “life, liberty, and property” are public rights that cannot be denied by government. Federal civil rights laws have now extended those prohibitions to certain private institutions, for example, employers. But such rights, including the property rights of the 5th and 14th Amendments are public and tangible. They can be seen and touched and publicly experienced. The reserved rights and powers of the 9th and 10th Amendments are public— arising out of common human experience and which can be claimed by anyone. The privileges and immunities” of Article IV and the 14th Amendment by their terms concern “citizens” and have always been regarded as some kind of general national right, to travel freely, for instance, and were rendered close to a dead letter by the famous Slaughterhouse Cases (1873). Litigation of “rights” has been based on the Due Process and Equal Protection Clauses ever since.
In its abortion decisions, the Supreme Court has created the new concept of positive, private, personal, and autonomous rights. What is more, a right for women alone is a class right.
Seventh, the Supreme Court has used Roe to cancel parents’ legal authority over their minor daughters and instituted Constitution-based sexual liberty for teenagers.
States’ attempts to protect children by protecting parental authority have been the subject of no fewer than ten Supreme Court decisions since Roe. The most important of those have been narrowly decided, another indication of the weakness of such “precedents” as controlling in law and society. The independent sexual liberty of American teenage girls has been firmly established.
Only three years after Roe, the Court invalidated a Missouri law requiring parental and spousal consent to abortion and limiting some second-trimester abortions in the 6-3 (but only five justices completely joining the majority opinion) decision in Planned Parenthood v Danforth (1976). The Missouri statute required, inter alia, parental consent during the first trimester for the abortion of an unmarried minor girl under the age of eighteen. Missouri argued that this abortion statute was of the same nature as its other and numerous legal protections of minors, such as prohibitions on the purchase of alcohol, cigarettes, and firearms. Blackmun, writing for the Court and saying that “minors have constitutional rights” and a “right of privacy,” vetoed Missouri’s granting of an “absolute power” to the parents.
One year later, the 7-2 Court in Carey v. Population Services (1977), citing Roe and Danforth, extended the Eisenstadt contraceptive liberty to teenagers. The Court invalidated a New York statute that prohibited public advertising of contraceptives, prohibited the distribution of contraceptives to minors under the age of sixteen, and limited the distribution of contraceptives to persons over the age of sixteen to pharmacists. The Court, per Justice Brennan, said that the access to abortion provided by Danforth applied “a fortiori” to contraception.
Thus, Roe, Casey, Danforth, and Carey together, gave American teenagers a Constitution-based sexual freedom completely independent of their parents, and thus did the Court complete its constitutionalization, begun by Griswold, of the sexual revolution.
Eighth, as provided by the Constitution, abortion must be returned to the states, that is, to the people.
The ceaseless opposition by a majority of the states to Roe and its progeny demonstrates that the Casey Court’s worry about a “loss of confidence in the Judiciary” has come to pass. Since 1973, there have been twenty major Supreme Court decisions, including three in the last five years, concerning state attempts to limit the effect of Roe. The Court has also canceled both parental rights over their minor children and fathers’ rights.
If Roe was overturned, most states would enact some kind of restrictions and even prohibitions on abortion. But there would still be a great variation in the nationwide result. In January of 2020, New York, led by Governor Andrew Cuomo—with his lighting up of the World Trade Center in celebration—codified Roe’s nine-months-of-abortion into New York state law. New Jersey, Oregon, and Vermont have done the same. And the Democrat-controlled Congress, along with President Biden, have stated their intention of doing the same.
In Federalist 45 and 50, Madison set out the structure of the new “compound republic. . . divided between two distinct governments” with the powers of the new federal government being “few and defined,” while delegating jurisdiction “in the ordinary course of affairs” over “the lives, liberties, and properties of the people” to the “numerous and indefinite” powers of the state governments.
In its abortion and numerous other decisions, the Supreme Court and the Congress have greatly reduced the role and powers of the states under the Constitution, especially Article I, Section 8 and under the Tenth Amendment.
But over the past five years, there has been something of a revival of a kind of American federalism. Led by California and New York, several states established “sanctuary cities” and in various ways defied federal immigration law during the Trump years. Likewise, federal criminal laws concerning marijuana have been and continue to be ignored by several states. And now Oregon has gone beyond and set up new state laws legalizing more than one drug outlawed by federal law.
This year has seen an uproar and resistance at the state and local governments about race education and LGBT policies, very much promoted by presidential executive orders and by the Biden Department of Education. Likewise, about half of state governors have stated that they will not cooperate with President Biden’s recently promulgated order for mandatory Covid vaccinations. And this summer, about half of the states halted the federal Covid checks because they gave workers an incentive to be unemployed.
A long-standing example of federalism about a high-controversy issue is the sharp and continuing division among the states about the death penalty. Twenty-seven states continue to allow the death penalty, despite repeated efforts over recent decades by the same kind of Roe legal and judicial activism to get the Supreme Court to take it over and abolish it.
Almost no Americans support the Roe’s nine-months abortion principle. The split in the polls about what restrictions should be placed on abortion is a perfect proof that the issue should be left to the states. Returning abortion to the states would also help to revive democracy. Citizens should be going to their state capitols to advocate for laws having to do with the protection of life—as was always the case for 170 years of the country’s history.
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