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Was It Rightly Decided? Will It Be Overruled?


Wednesday, Jan. 22, 2003

Thirty years ago, in Roe v. Wade, the United States Supreme Court ruled that the Constitution protects a woman's right to decide to have an abortion prior to "viability" - that is, the point in pregnancy at which a fetus is capable of survival outside the womb. In the ensuing years, Roe has been at the center of the political struggle for control of the Court--a struggle that will resume when the next Supreme Court vacancy opens.

The battle over abortion is political in every sense of the word, but it is also legal. On this anniversary not only of Roe the political football, but also of Roe the judicial decision, let us consider the case's status as law.

Roe was, and remains, a profoundly difficult case. However, the decision was not, I will suggest, wrong in the ways that its critics often charge. Many bad arguments have been made against Roe--arguments that are quickly rebutted by looking at the relevant constitutional language and the weight of Supreme Court precedents. And to the good arguments against Roe, there are also good responses.

The Current Status of Abortion Law: Roe's Right In Jeopardy

What is the current state of the law regarding abortion? For now, abortion remains a constitutional right, but just barely.

For one thing, Court decisions in the period immediately following Roe upheld severe restrictions on publicly-funded abortions, as well as parental notification and consent requirements. As a result, the right to abortion has never been a reality for many poor women and teenage girls.

In 1992, a 5-4 majority in Planned Parenthood v. Casey reaffirmed what it called "the central holding of Roe." Endorsing this "central holding" were Justices Blackmun, Stevens, O'Connor, Kennedy, and Souter. Chief Justice Rehnquist and Justices Scalia, White, and Thomas dissented from their holding.

Although a majority of the Court in Casey endorsed Roe's "central holding," the Court did not produce a single opinion that resolved all aspects of the case. The controlling opinion was co-authored by the Court's centrists: O'Connor, Kennedy and Souter. Although these three reaffirmed Roe's core, they nonetheless nibbled away at its edge, revising the standard by which abortion laws are judged. As a result, while the Court continued to bar laws prohibiting pre-viability abortions outright, it also relaxed the standard under which regulations that fall short of prohibitions are judged--applying a new "undue burden" standard.

Under the newly relaxed "undue burden" standard, the controlling opinion in Casey upheld a 24-hour waiting period for abortion. It thereby overruled a prior decision invalidating such a waiting period, even as it purported to reaffirm Roe.

As the 1990s progressed, changes in the Court's personnel appeared to shift the balance to a 6-3 majority in favor of retaining a constitutional right to abortion. The Court still included four of the Casey majority justices (Stevens, O'Connor, Kennedy, and Souter). Justice Byron White, one of the original dissenters in Roe, was replaced by the pro-Roe Justice Ruth Bader Ginsburg in 1993, and when Justice Harry Blackmun, the author of Roe, retired in 1994, he was replaced by pro-Roe Justice Stephen Breyer. All in all, it looked like Roe was on solid ground.

But the 6-3 majority weakened in the 2000 case of Stenberg v. Carhart, when a bare 5-4 majority invalidated Nebraska's ban on "partial-birth" abortions. In that decision, Justice Kennedy parted company from the other Justices who had voted to reaffirm Roe, interpreting the "undue burden" test to give the states substantially greater leeway to regulate abortion than the majority of the Court. Justice Kennedy indicated that he would still vote to invalidate a ban on pre-viability abortions, but he was not prepared to scrutinize other regulations as closely as his erstwhile allies.

From the perspective of 2003, notwithstanding the Supreme Court's repeated reaffirmations of the Roe decision, the question whether abortion will continue to be recognized as a constitutional right remains very much in doubt. Depending on the nature of the restriction, one or two appointments to the Court could shift the balance dramatically.

Indeed, only one more anti-Roe appointment would make Justice Kennedy's view of the undue burden standard the law. And two anti-Roe appointments that both replaced pro-Roe Justices would overrule Roe.

Bad Argument Number One: The Constitution Doesn't Mention Abortion

Whether and how long Roe remains on the books depends on factors--such as when individual justices retire and the outcome of the next federal election-- beyond this columnist's powers of prognostication. Instead of speculating about what will become of Roe, let us therefore ask what should become of the case. Was it wrongly decided? Are its critics right? Although Roe was a hard case, some of the most common criticisms miss the mark.

Undoubtedly, most ordinary citizens who disapprove of Roe do so because they believe that abortion is immoral. However, that is not by itself a constitutional argument against the decision. Accordingly, judges, lawyers and scholars who criticize the decision must do so on other, or at least additional, grounds. Most commonly, they note--correctly--that the Constitution's text nowhere mentions abortion. Although this may at first appear to be a telling point, it is at bottom a very bad argument.

Writing in the 1819 case of McCulloch v. Maryland, Chief Justice John Marshall stated, in words that have been famous ever since, that "we must never forget, that it is a constitution we are expounding." What Marshall meant was that the Constitution's general language setting forth the powers of government and the rights limiting those powers has concrete implications beyond what a narrow literalism would suggest.

For example, the Constitution nowhere expressly prohibits sex discrimination, but surely the Supreme Court was right to infer such a prohibition from the general command that no state deny "to any person within its jurisdiction the equal protection of the laws." Likewise, the Constitution does not mention a right to burn a flag as a form of political protest, but that right can fairly be inferred from the First Amendment's protection of "the freedom of speech" (and thus was properly recognized in the 1989 case of Texas v. Johnson.)

Or take abortion itself. Do Roe's critics really think that the Constitution's failure to include the word "abortion" means that the Constitution has nothing to say about the subject? Even the critics themselves cannot truly maintain this position, as the following hypothetical example shows.

Suppose that, in response to a perceived overpopulation crisis, the government were to require women to have abortions if they became pregnant after having already given birth to one or two children. Surely most of Roe's critics would argue that such an odious policy would be unconstitutional, notwithstanding the Constitution's supposed silence on the subject.

What the Constitution Actually Says About Unenumerated Rights

The argument that abortion is unprotected because it is unmentioned in the Constitution draws much of its strength from the fact that the Supreme Court has located abortion rights in the Fourteenth Amendment's Due Process Clause, which would appear to have more to do with fair procedures than with a substantive right of privacy.

Yet that basis for the judicial decision was largely a matter of historical accident. Because of its reluctance to re-examine dubious nineteenth century precedents, the Court squeezed the right to abortion--and other substantive rights--into the Due Process Clause of the Fourteenth Amendment. Yet if we look at the constitutional text itself, we find that there is a very straightforward basis for rejecting the claim that the Constitution's failure to mention abortion in so many words precludes judicial recognition of an abortion right. Indeed, the Constitution expressly allows the recognition of rights not explicitly spelled out.

Specifically, the Ninth Amendment states: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." When somebody says that abortion--or any other right--is unprotected because not enumerated in the Constitution's text, he flatly contradicts the Ninth Amendment. Conversely, the Roe and Casey Courts were both right to rely on this Amendment in their decisions.

The Ninth Amendment, like the rest of the Bill of Rights, was originally understood as only restricting the actions of the federal government, and not the states. However, the adoption of the Fourteenth Amendment in 1868 and twentieth century judicial decisions interpreting that Amendment extended most of the Bill of Rights to the states.

The Fourteenth Amendment reads in part: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." As many scholars have argued, this language is most naturally understood to provide the people with the same protection against state infringement of rights as they enjoy against federal infringement. In other words, the Privileges or Immunities Clause, in legal parlance, "incorporates" the Bill of Rights, including the Ninth Amendment. Only those dubious nineteenth century decisions I mentioned above prevented the Court in Roe and other twentieth century cases from drawing this straightforward inference from constitutional text, leading the Court instead to rely upon the much more awkward inference from the Due Process Clause.

In sum, the text of the Constitution, far from ruling out recognition of unenumerated rights such as abortion, invites their recognition. And it invites that recognition whether the relevant sovereign is the federal government or a state government.

Bad Argument Number Two: The Fourteenth Amendment Was Not Intended to Protect an Abortion Right

Of course, just because the Court can recognize some unenumerated constitutional rights does not mean that it should recognize any particular constitutional right. Roe's critics sometimes complain that the problem with the decision is that the framers and ratifiers of the Bill of Rights and the Fourteenth Amendment did not intend the general language they used to encompass a right of abortion.

Even on its own terms, this claim may not be right. Much of Justice Blackmun's opinion in Roe was devoted to showing that prior to the late nineteenth century--that is, prior to the adoption of the relevant constitutional language--early-term abortions were generally permitted in the United States.

Moreover, suppose the critics are right. Suppose, in other words, that the framers and ratifiers of the Bill of Rights and the Fourteenth Amendment did not think they were protecting a right to abortion. Indeed, suppose they believed abortion bans to be entirely consistent with the provisions they were ratifying. Does that mean that Roe was wrongly decided?

On the contrary, that would hardly distinguish Roe from other Supreme Court decisions generally considered to be correct.

There is powerful evidence that the framers of the Fourteenth Amendment thought its Equal Protection Clause to be perfectly consistent with racial segregation and discrimination against women. Yet both practices have rightly been condemned on the authority of that clause.

More broadly, the original understanding of a provision is only one factor in constitutional interpretation. In the case of abortion, it is not entirely clear in which direction that factor points; but whatever conclusion one draws, Roe's critics overstate their case when they claim that the text and original intent alone are sufficient to demonstrate that the decision was wrong.

Good Argument Number One: Life Outweighs Liberty

Having rejected the bad arguments against Roe, what about the good ones? To see what good arguments against Roe look like, it is important to be clear about the nature of the right Roe grants.

The question whether the Constitution protects a right to abortion has two aspects to it. First, do laws restricting or forbidding abortion violate some fundamental interest of women? Second, are such laws nonetheless justified?

The first question is not difficult. If the courts are going to be in the business of recognizing any interests as sufficiently fundamental to warrant prima facie constitutional protection, the interest in not being forced to carry a pregnancy must rank very close to the top of the list.

After all, an unwanted pregnancy carries with it immense and personal physical and psychological burdens--burdens far greater than those exacted by laws infringing other rights the Court has recognized. The interest in avoiding an unwanted pregnancy is certainly as fundamental to personal autonomy as the interest in burning a flag, teaching one's child a foreign language, or any of a variety of other substantive rights the Supreme Court has recognized.

What makes the abortion issue difficult is the second question: Are anti-abortion laws justified despite this very serious infringement on women's liberties?

Even granted that abortion regulations are severely burdensome for those to whom they apply, constitutional rights are not absolute. Thus, why doesn't the state have a sufficiently weighty justification--in lawyer's language, a "compelling interest"--in protecting the life of the unborn?

The Roe opinion provides half an answer to this question. The Fourteenth Amendment itself, which begins by referring to "All persons born . . . in the United States," indicates that its protection extends only to "born" persons, and not the unborn.

But this is only half an answer, showing (as the Roe opinion states) that the Constitution does not require states to weigh the lives of fetuses equally with the lives and liberty of other persons. What if the State chooses to do so anyway?

Constitutional rights can be overridden to advance compelling interests even though those interests are not themselves matters of constitutional obligation. For example, the interest in national security may justify wartime restrictions on reporting troop movements, even though the Constitution itself does not restrict such reporting.

Likewise for abortion: why can't a state or the federal government conclude that interests in the dignity of human life (or potential life), and the avoidance of fetal suffering, justify restricting abortion?

Good Argument Number Two: Absent a Clear Constitutional Command, the Courts Should Defer to Politics on Matters of Profound Moral Disagreement

The Roe Court answered that question more or less as follows: the state's interest in the life of the fetus does justify abortion prohibitions at some point in pregnancy. But conception is too early, because a zygote does not have subjective consciousness even though it may, according to various religious views, have a soul. And birth is too late, because abortion of a nearly full-term fetus is (under most circumstances) the moral equivalent of infanticide. Therefore, for lack of a better alternative, viability is the appropriate line to draw.

It is easy to criticize the Roe Court for drawing the wrong line, but it is difficult to propose an alternative that does not appear at least as arbitrary. And that is precisely why some critics of Roe argue that the Court ought to have left this morally divisive issue for legislative resolution.

There is considerable force to this last point, but perhaps not quite so much force as the Roe critics think. After all, we do not have a general constitutional principle that divisive moral issues must be left to legislative processes.

For instance, the 1954 Supreme Court decision in Brown v. Board of Education was not only divisive, but divisive along geographic lines that had previously split the country in a bloody Civil War. Yet no one now says that the Court erred in Brown by resolving a divisive moral question based on general constitutional language.

Perhaps the crucial distinction between Brown and Roe is that the American people came ultimately to accept the ideal of racial equality, and to move on to debate instead how equality should best be achieved, while we remain divided over abortion itself.

For that reason, even if Roe's critics are wrong to suggest that the Court must always stay out of divisive moral issues, there is nonetheless something to the argument that a right that remains controversial to its core thirty years after its announcement should not be deemed fundamental. The argument urges: If fundamental rights sketch out the basic conditions for human flourishing, why hasn't nearly everybody yet seen the basic truth that there must be abortion rights, the way we eventually came to condemn racial apartheid.?

That is a fair question, but if we are to criticize the Supreme Court for being out of step with the American public, the abortion decisions are a very peculiar place to begin. Opinion polls reveal that a majority of Americans in fact support a right to abortion, albeit with substantial restrictions of the sort the current Court has shown itself willing to uphold. That means that taken together, the Court decisions actually do reflect Americans' views. Roe, Casey and Stenberg prevent some states from banning abortion, but they are not at odds with the views of most Americans.

Are there other examples of the Supreme Court resolving contentious moral questions based on ambiguous constitutional text? Most certainly: we need look no further than the federalism revolution led by Chief Justice Rehnquist--himself an original Roe dissenter and longtime critic of the case.

In just the last few years, the Rehnquist Court has struck down, in whole or in part, federal legislation effectuating the following goals: prohibiting age and disability discrimination; protecting the rights of religious minorities; and redressing gender-motivated violence. Each piece of invalidated legislation had been enacted with broad bipartisan support. Yet, a closely divided Court in each case preferred its own controversial view of the Constitution to that of the national legislature. Surely these judicial decisions, which do not just choose one side in a divisive moral controversy (as Roe did), but actually choose the side opposed by an overwhelming majority of the people, ought to be condemned before we condemn Roe.

Which is not to say that Roe v. Wade was or is an easy case. Thirty years after the Supreme Court's decision in Roe, the abortion issue still poses a difficult constitutional question. However, unless one is prepared to discard most of the work of the modern Supreme Court, one cannot say that Roe was anything like the blatant mistake its critics claim.

That is faint praise, I know, but such is the nature of the subject--the deliberate destruction of human fetuses--that most of those who, like myself, consider themselves "pro-choice," take no joy in the position. The thirtieth anniversary of Roe v. Wade is, even for those who ultimately support the decision, a somber occasion, not a day of celebration.

Michael C. Dorf, a FindLaw columnist, is Professor of Law at Columbia University School of Law.

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