The recent release of a draft Supreme Court opinion overturning Roe v. Wade seems an appropriate time to re-post the following essay, originally written in June, 2019. It’s also a time to remember how we got here, and the far-reaching consequences of the ruthless political partisanship that has characterized our recent past.
Imagine if you will that, when Barack Obama nominated Merrick Garland, then a highly-regarded, centrist appellate court judge, to fill Antonin Scalia’s seat on the Supreme Court, Mitch McConnell, then Senate Majority Leader, had given Garland a fair hearing instead of stonewalling the nomination and eventually sinking it on the concocted grounds that almost a year to go before the presidential election just wasn’t enough to compel the Senate to fulfill its constitutional duty to review Supreme Court nominees. Garland, with credentials out the door and a centrist judicial record, would no doubt have been confirmed, and would be now sitting in the seat occupied by Neil Gorsuch. The two additional conservative jurists installed by Trump during his reign (“administration” is too democratic a term) would have joined Clarence Thomas and Sam Alito on the right wing of the Court, balancing the center-left group of Breyer, Kagan, and Sotomayor, with Garland and Chief Justice Roberts hovering center-left and center-right, respectively.
A Court thus composed would have been highly likely to split evenly on the question of reversing Roe, and in all probability Roberts’ penchant for preserving the institutional credibility of the Court and its precedents would have prevented him from supporting an Alito-style flat out reversal. Roe might have been watered down even further than it was in Casey (discussed below), or re-cast on due process or equal protection grounds rather than the ephemeral notion of privacy, but the fifty-year-old precedent would have been respected.
Instead, the Court’s right wing has five members, and Roberts’ vote is moot. And thanks primarily to Mitch McConnell, we’re in the last days of Roe v. Wade.
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Of the many ramifications of the election of Donald Trump, perhaps the most significant was that it dramatically changed course of American constitutional law. A President Trump would appoint at least one, and likely two or three Supreme Court justices, and those nominees would be drawn from a list, composed by the right-wing Federalist Society, of conservative, “originalist” jurists (Trump himself having no competency to determine who might make an appropriate judge on any court).
Two of those appointees, men in their 50s, now sit on the Supreme Court, ensuring that its conservative majority will persist for a generation or more. Whether the American voter realized it or not, a great interregnum of American liberalism (in the classical sense) came to an end when the Electoral College tally outweighed the popular vote that night in 2016, and we are beginning to reap the consequences. One of the early constitutional casualties is likely to be the Court’s landmark decision in Roe v. Wade.
When Roe was decided by the Supreme Court in 1973, I was a student at Columbia Law School and, by marvelous coincidence, taking a required course in Constitutional Law. Ruth Bader Ginsberg was on the faculty at the time, and though she didn’t teach our Con Law course, we students were all aware of her groundbreaking advocacy for women’s rights and greeted Roe as a culmination of what Ginsburg and countless other proponents of gender equality had long been fighting for: a woman’s right to decide, to the greatest degree reasonable, what happens to her own body.
The decision was handed down in January, at the beginning of our semester, and we proceeded to spend several sessions of our already packed Con Law class schedule on the case, its precedents, and its reasoning. We were young, it was the ‘70s. The Equal Rights Amendment had recently passed the House and the Senate by lopsided votes, and seemed well on its way to ratification by the states. There may have been some among us who regarded abortion as inherently immoral or the majority opinion in Roe as a constitutional travesty, but I don’t remember them. The bitter joke at the time, and since, went that if it were men who got pregnant, abortion would be a sacrament.
Roe was a 7-2 decision; it wasn’t even close.
The young law students that we were never dreamed that in our lifetimes we would see the political and judicial winds shift so dramatically that the central tenet of Roe v. Wade –that laws restricting a woman’s decision to end her pregnancy were constitutionally suspect – would be overruled, but we now seem to be on that path. Georgia, Louisiana, Mississippi, and my home state of Ohio have recently passed laws that outlaw abortion when a fetal heartbeat can be detected (that is, as early as six weeks after a woman’s last menstruation); Alabama has gone still further and banned abortion outright, without even an exception for rape or incest, imposing penalties of up to 99 years in prison for doctors who perform the procedure. All these new statutes are designed to elicit litigation and bring the issue thought settled by Roe back before the reconfigured Supreme Court, stare decisis (the judicial doctrine that demands that precedent be followed except in rare circumstances) be damned. Several other states – Arkansas, Kentucky, Louisiana, Mississippi, North Dakota and South Dakota – have enacted “trigger laws” that would come into effect upon the reversal of Roe and make abortions illegal in those jurisdictions.
In the decades since its decision, the very name of the case has become an epithet to some and a rallying cry to others, its legal and social context largely forgotten, the specifics of its ruling often misunderstood or deliberately mischaracterized. Yet despite its sound-bite notoriety, Roe v. Wade ceased to be the constitutional standard of abortion rights long ago. As the current wave of anti-abortion legislation builds toward its inevitable crest on the docket of the Supreme Court, it’s important that we recall what Roe was really all about, how significantly its ruling has been modified by subsequent Supreme Court decisions, and what “reversing Roe” would really mean.
In 1969, a woman named Norma McCorvey, 21 years old and separated from an abusive husband, discovered that she was pregnant for a third time. She sought an abortion in Dallas, having been told that local law would permit such a procedure if she claimed that she’d been raped. Denied a legal abortion for want of evidence of rape, she unsuccessfully sought an illegal one, and was eventually referred to a local lawyer named Sarah Weddington, who filed suit on behalf of McCorvey (her identity disguised as “Jane Roe” in court filings) against Dallas district attorney Henry Wade, alleging that Texas’ anti-abortion laws were unconstitutional.
A federal district court in Dallas decided Roe v. Wade in favor of McCorvey, and the state of Texas appealed to the United States Supreme Court. Weddington, though an able litigator, was no constitutional scholar, and despite Justice Potter Stewart’s efforts to pin her down in oral argument, was happy to base her case on any or all of the First, Fourth, Fifth, Eighth, Ninth, or Fourteenth Amendments to the Constitution.[1]
The most immediate legal precedent for Roe was Griswold v. Connecticut, decided in 1965, in which the Court overturned the conviction of Estelle Griswold, head of Planned Parenthood in Connecticut, under a state law that made the use of contraceptives illegal under penalty of fines and imprisonment. Griswold had been arrested in New Haven for dispensing contraceptives to married women in her clinic.
In Griswold, the Court had articulated a “right to privacy” nowhere explicitly mentioned in the Constitution, but discerned by Justice William O. Douglas, writing for the majority, in “penumbras” and “emanations” of various constitutional provisions such as the due process clause of the Fourteenth Amendment, the Fifth Amendment’s right against self-incrimination, and the Ninth Amendment’s reservation to the people of “other rights” even though not enumerated by the Constitution. In Douglas’s view, these provisions coalesced into a right of protection from government intrusion, in this case against intrusion into one of the most intimate of personal matters, birth control.
It bears at least a moment’s reflection that the right to privacy, much derided by conservative legal critics (most notably the late Justice Antonin Scalia) for its grounding in ethereal penumbras and emanations, is essentially a libertarian notion, one that would be quickly invoked by conservatives if what were under discussion was, say, gun rights or the right of a business to deny services to gays on religious grounds. But in the context of women’s reproductive rights, this same notion of freedom from government control is disparaged as a fanciful construct of an activist court.
The right to privacy was extended to the right of unmarried persons to use contraceptives by the Court’s ruling in Eisenstadt v. Baird (1971), in which the plurality opinion foreshadowed Roe by asserting that “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”
The majority opinion in Roe, written by Justice Harry Blackmun, a Nixon appointee, found that the Constitutional right of privacy “is broad enough to encompass a woman’s decision whether or not to end her pregnancy.” The majority explicitly rejected the position, which may become central in coming challenges to Roe, that the fetus was a “person” within the meaning of the Constitution, with its own rights and duties. But the majority acknowledged that, at some point in a pregnancy, the state’s interest in protecting the unborn fetus becomes compelling enough that it could limit or prohibit abortion.
The need to define that line in time across which the arm of the state could not reach required Blackmun and the majority to embark on what would later be widely criticized as detailed legislation from the bench, unmoored from constitutional principles; namely, the division of the typical nine-month pregnancy into three trimesters, with different rules applying to each. In the first, a woman’s right to end the pregnancy was to be essentially absolute and unrestrained by the state. In the second, the state could “regulate the abortion procedure in ways that are reasonably related to maternal health.” In the third trimester, when then-current medical science held the fetus to be potentially “viable” outside the womb (a point that has steadily moved earlier in pregnancy with the passing years), the state’s interest in the fetus became strong enough that it could regulate or prohibit abortions except where necessary to preserve the life or health of the mother.
All of that reads like a statute rather than a judicial opinion, and there were immediate and lasting complaints that the democratic function of legislatures across the land had been usurped by unelected men on the Supreme Court on a question around which there were deep regional, religious, and philosophical divisions. Even Ruth Bader Ginsburg had her doubts, saying that Roe had “halted a political process that was moving in a reform direction and…prolonged divisiveness and deferred stable settlement of the issue.”[2]
What had been a matter of intensely personal and often painful choice became a political cudgel. Social conservatives, long on the fringes of the Republican Party, consolidated political power by galvanizing Catholics, evangelicals, and white southern Democrats around the issues of abortion and women’s rights in general.[3] A reactionary conservatism began to win elections, and with those victories came judgeships for conservative jurists who passed the litmus test of opposition to Roe.
By the early 1990s, the Justice Department had asked the Supreme Court to overrule Roe in no less than five cases, and the composition of the Court had changed dramatically. William Rehnquist, a dissenter in Roe, had become Chief Justice, only four of the seven Justices who had formed the majority in Roe remained on the Court, and Sandra Day O’Connor, a Reagan appointee, had become the first woman to serve in its ranks. She would co-author the plurality (5-4) opinion in Planned Parenthood v. Casey (1992), a case that ostensibly preserved the essence of the holding in Roe, but significantly weakened it.
At issue were several provisions of Pennsylvania law that sought to curtail a woman’s access to an abortion by requiring that she be informed of the health risks of the procedure and provide her affirmative consent at least 24 hours before it was performed, that she confirm that her husband (for of course she must have one) had been notified, and that if she were a minor, her parents had consented to the procedure. Ken Starr, then Solicitor General, who would go on to investigate Bill Clinton in the Monica Lewinsky affair, filed an amicus brief as asking that the Court overrule Roe as wrongly decided.
The plurality opinion in Casey opens with the memorable if rather tortured line, “Liberty finds no refuge in a jurisprudence of doubt,” and goes on to lament the contentiousness that Roe had unleashed and to call for “the contending sides in a national controversy to end their national division by accepting a common mandate rooted in the Constitution.” While purporting to confirm the “essential holding” in Roe that a woman’s right to end her pregnancy is, at least to some degree, constitutionally protected, Casey does away with the trimester framework that Harry Blackmun had devised, and substitutes a binary standard of fetal viability (then thought to start at around six months), prior to which the state can regulate abortion as long as such strictures do not impose an “undue burden” on the woman’s access to the procedure, and after which the state is at liberty to protect the fetus even to the point of prohibiting abortion altogether, except (another except clause) where it is necessary to protect the life or health of the mother. Applying the “undue burden” standard, the Court struck down the spousal notice requirement of the Pennsylvania law, while upholding its other restrictions.
Perhaps most significantly, the right to privacy, so central to Roe, went unmentioned by the plurality opinion in Casey, suggesting that this relatively new star in the constitutional firmament had begun to sink back into the penumbra from which it had emanated.
This is essentially where Constitutional law on the subject of abortion rests today. In more recent cases, the court has refined –some would say further weakened—the “undue burden” test by balancing statutory burdens on abortion access against their alleged benefits, but at least for the time being, the Casey version of Roe still stands.
The “fetal heartbeat” and other recently-passed laws that would criminalize early-stage or all abortions are a frontal attack on what’s left of Roe, and represent as much a rejection of the authority of the Supreme Court as the election of Donald Trump represented a rejection of consensus-based politics. Neither bodes well for the republic, not to mention the rights of women.
When challenges to these laws come up on appeal to the Supreme Court, as seems inevitable, what will be the legal arguments in favor of upholding them, and if those arguments prevail, what would a post-Roe America look like?
The first and most likely argument would be that Roe was simply wrongly decided and should be flatly overruled, and the pre-Roe status quo of state-by-state legislation on the subject of abortion reinstated. Roe, according to this argument, was a case that never should have been heard in the first place, involving, as it had to, non-justiciable questions –such as when human life begins and what constitutes personhood– that should be left to democratic processes if they must be addressed at all in public life. And having been heard, this argument goes, Roe was wrongly based on concepts such as an ethereal “right to privacy” nowhere found in the Constitution but derived from provisions that simply do not address the issue at hand, which therefore must be left to the collective wisdom of the people as expressed through their legislative representatives.
But there is another possible argument, one that would be preferred by many evangelicals and Catholics, one that must be confronted by anyone who thinks seriously about the ethics of abortion. It would assert that the unborn fetus is a “person” under the law from the moment of conception (or at the very minimum, from the moment of detectable fetal heartbeat), with all the constitutional rights and privileges of any third-trimester, recently-born, or fully-grown human, and that the rights of the mother of this person cannot take precedence over its own, including the right to due process, equal protection under the law, etc.
The Court in Roe explicitly rejected this notion on the ground that nowhere in the history or language of the Constitution is there an implication that a fetus was considered a person (any more than it conferred full personhood on black slaves). But this constitutional disenfranchisement of the unborn is what many anti-abortion advocates are thinking of when they say they want Roe reversed. Fetal personhood is the unspoken premise of laws like the Indiana statute, recently upheld by the Court, that requires that fetal remains be buried rather than disposed of by other means.
The concept of fetal personhood resonates not only with the religious belief in a human soul that infuses the embryo at inception, but with the principles of other civil rights movements where the disenfranchised – blacks, women, gays – sought equality and justice, and can be allied to our abhorrence of eugenics, recently invoked by Justice Clarence Thomas in a case in which the Court declined, for now, to consider the constitutionality of a state law that prohibits abortions sought because of the fetus’s gender, race, or disability. Fetal personhood will likely be the premise of one or more of the coming legal attacks on Roe.
For almost 50 years, constitutional case law involving abortion has been an elaborate balancing act, a perhaps foredoomed attempt to square the right of the individual to determine her own fate with the state’s interest, however selective and conditional, in protecting life. The trimester framework of Roe and the “viability” standard of Casey were plausible efforts to strike that balance. But balance is an anathema where absolutes are concerned, and for many, the sanctity of prenatal life on one hand, and the right of a woman to decide what happens to her own body on the other, are nothing if not absolute.
It seems unlikely that even the current conservative majority on the Supreme Court will embrace the fetal-personhood-from-inception argument, if only because they will feel the need to at least pay lip service to Roe and the concept of stare decisis, and because the change in law would be so abrupt and extreme. A ruling based on such a concept would make any law that allows abortion, no matter the circumstances, unconstitutional. But as ardent originalists, they might find that Roe and its progeny were too reliant on a fabricated “right to privacy” to survive fresh constitutional scrutiny, and should be reversed, simply banished into the legal ether as though they never were.
State legislatures would then be completely free to legislate on the subject of abortion as they saw fit, and would be doing so in a dramatically more politicized and ideologically divisive environment than the post-War, pre-Roe era. The patchwork of abortion laws already spreading across the U.S would become even more varied and regionally balkanized, with the burden of the most restrictive laws falling, as they always do, disproportionately on the poor, who cannot shop around the country for a legal abortion, and the poorly-educated, who cannot navigate the legal labyrinth that these new laws would create. (The idea that private-sector philanthropic organizations will offset the economical and societal consequences of unwanted pregnancies by providing the reluctant mother with, say, free Pampers for six months seems fanciful at best and deeply cynical at worst.) Even the Alabama statute banning abortion outright would stand, in all likelihood for the generation or more that it may take for the composition of the Court to again swing in favor of the pragmatic secular humanism that guided the majority in Roe.
In a different world, overturning Roe would mean more firmly grounding the reproductive autonomy of women in accepted constitutional principles. Even the most charitable scholarly view of Roe finds its constitutional reasoning wanting. Because the male Justices of the time could not conceive of the abortion issue in terms of women’s equality under law, they resorted to the vulnerable construct of a generalized “right to privacy” rather than to, say, the explicit language of the Equal Protection Clause of the Fourteenth Amendment, understood to require that laws whose impacts fall uniquely on women (as the consequences of abortion laws necessarily do) must be subjected to “strict scrutiny” to ensure, first, that they serve a legitimate and compelling state interest and, second, that they are narrowly tailored to meet that interest only, and not to assuage the range of possible thoughts, feelings, and beliefs that a faction of its constituency may hold dear.
What is a thoughtful person to make of all this? Throughout the history of the republic, state criminal laws have never valued the life of the unborn to the same degree that they valued postpartum life.[4] One can identify a deep hypocrisy in a state or a nation that on one hand claims to hold life itself, however nascent, so sacred as to supervene the painful human realities that drive so many women to choose to end their pregnancies, and on the other routinely imposes the death penalty as a proud vindication of earthly justice or inflicts mass civilian deaths on foreign lands in the name of national security. One can wish that religious belief would find its fulfillment in the conversion of individual souls and minds rather than in the prescription of laws that must apply to the believer and the agnostic alike.
One can wish for a national consensus that would recognize the right of a woman to have a reasonable time to decide whether or not to become a mother, with all the lifelong repercussions that entails (and six weeks since a last menstrual period is surely not enough), and to never be forced to carry a pregnancy to term if that would threaten her health or her life. But in the end, all we are left is the struggle of absolutist ideologies, the dim clamor of politics that can raise the likes of Trump to power and in a single night change for a generation the personal rights of those who thought a great and lasting milestone had finally been passed back in 1973.
Such are the wages of the imperfect system we call a democracy. Such are the last days of Roe v. Wade.
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[1] Jill Lepore, These Truths, 653.
[2] Balkin et al., What Roe v. Wade Should Have Said, 11.
[3] See Lepore, 647-656.
[4] Balkin et al., 19.