Roe’s Awkward Departure

 

Politico rocked the nation with its recent exclusive and explosive publication of a mysteriously leaked copy of Justice Samuel Alito’s February 10, 2022, draft majority opinion in Dobbs v. Jackson Women’s Health Organization—the apparent decision by at least five Supreme Court Justices to uphold Mississippi’s law banning elective abortions after the fifteenth week of pregnancy. That opinion makes it likely that the Supreme Court will overturn Roe v. Wade, which crafted a constitutional right to an abortion forty-nine years ago in 1973. The defenders of the Dobbs opinion regard it as a triumph of originalism worthy of “three very enthusiastic cheers.” In sharp contrast, the progressive critics of the decision go to exquisite lengths to express their complete and utter contempt for a decision that according to the League of Women’s Voters “not only strips women and pregnant people of their personal autonomy but opens the door to erode more fundamental rights,” leading “to collective shock and outrage” by pro-choice advocates.

Clearly, with stakes this high it is important to set aside both exultation and despair in order to analyze the strengths and weaknesses of the Alito opinion. On the positive side, Alito’s opinion adopts a tone of workmanlike seriousness that is quite circumspect about overruling past precedents, and explicitly disclaims any intention to overrule any other precedent on either women’s or LBGTQ rights. Instead, it treats abortion  as “a unique act” that does not impact “in any way” Lawrence v. Texas (2003), dealing with private consensual sexual behavior, or Obergefell v. Hodges (2015), constitutionally protecting same-sex marriage. Instead, it articulates a two-stage argument that dismantles the establishment in Roe v. Wade and Planned Parenthood of Pennsylvania v. Casey of a constitutional right to abortion. The first part notes that abortion is not explicitly protected in the Constitution. The second part contends that Roe cannot be defended on some implied “substantive due process” grounds, because it does not meet the standard set out in the late Chief Justice William Rehnquist’s decision in Washington v. Glucksberg (1997), which refused to recognize any right to assisted suicide, namely that “any such right must be ‘deeply rooted in this Nation’s history and tradition’ . . . and ‘implicit in the concept of ordered liberty.’ ”

As Alito exhaustively documents, that standard cannot be met given the impressive array of common law and statutory criminal prohibitions of abortion in effect before the adoption of the Fourteenth Amendment in 1868, at the time of its adoption in 1868, or at any time thereafter. Yet at no point does Alito find any constitutional prohibition against the decriminalization of abortion. Instead, his chief complaint is that Roe “short-circuited the democratic process” that would otherwise lead to some political resolution in the same state legislatures that controlled the law on abortion before Roe. Recall that at the time of Roe, states had dramatically different abortion laws, from Texas’ very restrictive law (at issue in Roe) to New York’s 1970 law, which legalized abortion up through twenty-four weeks of pregnancy and whenever the mother’s life was in danger. Alito then shows that Roe’s legal reasoning “was exceedingly weak,” especially in light of its internal confusions, including its inability to justify different constitutional rules for each of the three trimesters of a pregnancy. Alito leveled the same criticism at Planned Parenthood of Southeastern Pa. v. Casey (1992), which affirmed Roe’s establishment of a right to abortion whenever state regulations impose an “undue burden on that right.” Hence, he struck down an opinion that could not be justified by the mere passage of time, and that had never gained political legitimacy during the past forty-nine years.

At this juncture, Alito wades into deeper water when he explains how Roe meshes with three previous dramatic overrulings by the Supreme Court. First, Plessy v. Ferguson (1896), whose “infamous” support of the “separate but equal” doctrine legitimated in one fell swoop anti-miscegenation laws, segregated schools, and segregated railways. Alito then couples Plessy with “the freewheeling judicial policymaking that characterized discredited decisions such as Lochner v. New York,” a 1905 ruling that struck down a New York maximum-hours law prohibiting employees from working more than ten hours per day or sixty hours per week in certain classes of bakeries because these laws did not fall within the state’s police power to regulate health and safety. Plessy was of course overruled in Brown v. Board of Education (1954), which held that separate-but-equal had “no place” in our constitutional order. None of Brown’s many defenders treated Plessy (unlike Roe) as a super-precedent just because it was on the books for fifty-eight years. And Lochner in turn was effectively overruled in West Coast Hotel v. Parrish (1937), on the ground that the “liberty of contract” did not prevent states from providing relief to ordinary helpless workers via minimum wage or overtime laws.

Finally, Alito notes that West Virginia Board of Education v. Barnette (1943) overruled  the court’s earlier decision in Minersville School District v. Gobitis (1940), which had allowed Pennsylvania to expel two students, ages twelve and ten, both Jehovah’s Witnesses, when they refused to salute the United States flag because of their sincere religious scruples. Barnette emphatically held that the First Amendment precluded the state from forcing any students to salute the flag.

Alito’s analysis is deeply discordant in harmonizing these pairs of cases. His overall premise is that “rational-basis review is the appropriate stand for such challenges.” That standard has traditionally imposed only modest burdens on state governments to defend silly laws. He thus cites Williamson v. Lee Optical of Oklahoma (1955), which found constitutional a flawed anticompetitive statute that forbade opticians from fitting or duplicating lenses without first obtaining a prescription, which was wholly unneeded for the task. Given that standard, Alito could not explain how Brown and Barnette were right to strike down oppressive laws. Neither Brown nor Barnette paid the slightest respect to the democratic process. Instead, both made it clear that there were certain individual rights under the First Amendment or the Equal Protection Clause of the Fourteenth Amendment that were shielded from the political processes of the state by requiring a far higher standard of review of legislative requirements. It was therefore incumbent on Alito to explain why the statutes that fell in Barnette and Brown did not pass the rational-basis test, which would have left both these issues with the democratic processes of the state. The standard short answer holds that these political processes are so rigged against some “discrete and insular minorities,” to use the felicitous phrase from footnote 4 of United States v. Carolene Products (1938), that the courts must step in to protect them from the same political process that Alito wanted to overturn.

The respect that Alito shows to long-term practices works very well to explain why Barnette was justly celebrated at the time in striking down a novel and insidious law. But segregation, and indeed slavery, had longer well-established pedigrees that were rightly disregarded in Brown precisely because any natural conception of individual liberty cannot allow the state to subordinate any part of its citizenry. Yet unfortunately, the Alito opinion goes badly astray when (unfortunately in line with Justice Roberts’ dissent in Obergefell) it links Roe to “erroneous decisions like Plessy and Lochner.” But that equivalence between polar opposites—Plessy and Lochner—cannot hold. Brown treats segregation as an offense against the Constitution, especially when imposed by the legislature. But no one thinks that New York would commit a constitutional evil if it decided to narrow, or even repeal, its minimum-wage or maximum-hour laws in order to increase competition in labor markets. The “erroneous” nature of Lochner hamstrings the state, but it does so only to vindicate the well-established rights of all individuals—rich and poor—to practice a lawful occupation, so much so that the so-called Lochner era arguably led, I believe, to the greatest increase in human welfare in the United States, a phenomenon that was well documented in Robert Gordon’s 2016 book, The Rise and Fall of American Growth.

Unfortunately, therefore, Alito’s draft opinion has to work a whole lot harder to explain why his theory of legislative dominance explains cases that strike down laws that he regards as odious, while allowing others to stand. As I have long believed, he can only make that case by looking more closely at the individual rights that are obscured by the judiciary’s comprehensive reliance on the rational-basis test. Indeed, both the Texas and Pennsylvania supreme courts have recently held that economic liberties under their state constitutions merit more protection than the rational-basis test provides. In Dobbs, that tougher approach means that Justice Alito has to address the question “when does human life begin?” and to defend more stoutly the traditional health and safety justifications for protecting unborn (or potential) children. After all, if these rationales supposedly support comprehensive wage and hour laws, why not fetal protection? Indeed, ignoring them in Dobbs will not prevent them from coming up with full force if the current version of Alito opinion is published, without explaining how Roe was wrongly decided precisely because the states could offer strong justifications for their anti-abortion laws. Indeed, ignoring these tough questions in Dobbs will not prevent them from arising anew in the political context once the case is officially decided. But in the subsequent legislative debates before Congress and in the states, Alito’s defenders will be hard pressed to explain why Roe was a weak opinion when he refuses to discuss the same  normative and practical issues that the Alito opinion also sidesteps.

The institutional stakes are enormous. Once Roe is overturned, these latent issues will come front and center in the state debates over whether to keep or reject Roe. Nor will that debate be confined, as Alito seems to think, to the state arena as it did prior to 1973. Democrat Senate Majority Leader Chuck Schumer has already put before the Senate a bill that goes far beyond Roe, and pitched battles at the state level encompass both the hard normative questions that Alito’s draft ignores and the insistent claims that criminalization of abortion will lead to a return to back-alley abortions and discrimination against poor women and women of color. Add in the likely prospect that some pro-life states may well seek to punish their local citizens who seek to help local women obtain abortions elsewhere. Justice Scalia’s powerful Casey dissent noted that pre-Roe “[n]ational politics were not plagued by abortion protests, national abortion lobbying, or abortion marches on Congress.” But those days are gone forever. What will come in their place, no one today can say.

© 2022 by the Board of Trustees of Leland Stanford Junior University.

Published in Law
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  1. DonG (CAGW is a Hoax) Coolidge
    DonG (CAGW is a Hoax)
    @DonG

    All I know is that if there was a Constitutional protection of body privacy, we have been doing the pandemic all wrong. 

    • #1
  2. Gossamer Cat Coolidge
    Gossamer Cat
    @GossamerCat

    It is unfortunate that the process that was interrupted 50 years ago was not restarted soon afterwards because I think you are right that the days where this process could have gone on without the religious fervor of both the pro-life and pro-abortion forces are gone.  I don’t foresee us coming to a national consensus anytime soon. 

    • #2
  3. genferei Member
    genferei
    @genferei

    I can see where the Prof is coming from. But if you have to correct all the wrong things at the same time to correct any single wrong thing, there’s not a lot of correction that’s going to happen.

    • #3
  4. Unsk Member
    Unsk
    @Unsk

    Richard:

    Unfortunately, therefore, Alito’s draft opinion has to work a whole lot harder to explain why his theory of legislative dominance explains cases that strike down laws that he regards as odious, while allowing others to stand. As I have long believed, he can only make that case by looking more closely at the individual rights that are obscured by the judiciary’s comprehensive reliance on the rational-basis test. Indeed, both the Texas and Pennsylvania supreme courts have recently held that economic liberties under their state constitutions merit more protection than the rational-basis test provides. In Dobbs, that tougher approach means that Justice Alito has to address the question “when does human life begin?” and to defend more stoutly the traditional health and safety justifications for protecting unborn (or potential) children. After all, if these rationales supposedly support comprehensive wage and hour laws, why not fetal protection?

    I agree. Alito’s draft seems to undermine our constitutional rights to religion and the right to life. He seems far too willing to defer to the democratic process and to denigrate our civil liberties. He ignores that we are a Constitutional Republic where our inalienable rights hold sway over the democratic process. 

    Originally, Roe seemingly determined that Fetal viability was a defining event that established that a fetus’s Right to Life at a minimum then beginning of the third trimester.  That Right to Life enshrined in the Constitution  based upon  Fetal Viability now generally is thought to be around 20 weeks.  Alito’s draft destroys that legal protection and seemingly grants to pro-abortion states through the democratic process an almost unfettered ability to abort at any point in the pregnancy and even after the pregnancy. 

    Whether to abort however you slice it is a profoundly a moral decision and thus affects in a very big way our Freedom of Religion because most of the major religions have very defined stances on the subject. That Freedom of Religion seemingly grants to individuals the right to worship as they choose but also limits the Government from restraining that worship. Alito’s draft in places like my state of California appears to open the door to restrictions on the practice of religion because it give such short shrift to the effect religion practices have on the issue of abortion. 

    • #4
  5. Raxxalan Member
    Raxxalan
    @Raxxalan

    Unsk (View Comment):
    Originally, Roe seemingly determined that Fetal viability was a defining event that established that a fetus’s Right to Life at a minimum then beginning of the third trimester.  That Right to Life enshrined in the Constitution  based upon  Fetal Viability now generally is thought to be around 20 weeks.  Alito’s draft destroys that legal protection and seemingly grants to pro-abortion states through the democratic process an almost unfettered ability to abort at any point in the pregnancy and even after the pregnancy.

    Except the practical effect of Roe to day is there is no Right to Life today.  States like New York and California already allow abortion up to the moment of birth.  California is also planning a law currently which would return the ancient practice of exposure to the realm of the legal.  None of these have been found to be unconstitutional.  While any limit on abortion in the first or second trimester has to be litigated almost at the point of daggers drawn. 

    Ultimately where life begins, if you don’t use the obvious answer, is a line drawing question.  In a democracy we answer that question with legislation.  If Alito makes the natural argument then abortion should be illegal in all 50 states under the constitution.  He isn’t willing to go that far so we are going back to what we had before Roe.  The Chief’s argument is closer to what your purposing but it keeps us in this unworkable system for another few decades.  

    The government limits religious practice all the time.  Employment Division v Smith explicitly allows regulation of religious practice under certain circumstances.  Additionally no one would argue that the laws against Human sacrifice are outside the governments ability to regulate.  Plural marriages aren’t legal or recognized despite being key components of major world religions, so the ability to regulate abortion would certainly fall within the bounds of existing law were it not for Roe.

    • #5
  6. Unsk Member
    Unsk
    @Unsk

    Ultimately where life begins, if you don’t use the obvious answer, is a line drawing question. 

    Ya, but we are a nations ruled by rights not be a mob.  Our rights are sancrosanct and should not be over-ruled by a passionate mob which will happen in many a Blue State if Alito sets the ruling. While you are correct that fetal viability since Roe was struck out of Roe, Dobbs is the perfect vehicle to put it back in. By Dobbs asserting 15 weeks is that line, fetus viability should be front and center in the discussion. If we are now going to enshrine precedent  almost always, then  what happened to that fetal viability precedent in Roe?

    BTW, anyone who thinks the Alito draft will in the end restrict abortions needs their head examined. If Alito is retained abortion will be just a short drive away to get a pill  to do the deed almost everywhere.

    • #6
  7. Rodin Member
    Rodin
    @Rodin

    Fascinating analysis in the OP. It underscores how, once again, we cannot craft law with Vulcan-like rationality.

    • #7
  8. Raxxalan Member
    Raxxalan
    @Raxxalan

    Unsk (View Comment):

    Ultimately where life begins, if you don’t use the obvious answer, is a line drawing question.

    Ya, but we are a nations ruled by rights not be a mob. Our rights are sancrosanct and should not be over-ruled by a passionate mob which will happen in many a Blue State if Alito sets the ruling. While you are correct that fetal viability since Roe was struck out of Roe, Dobbs is the perfect vehicle to put it back in. By Dobbs asserting 15 weeks is that line, fetus viability should be front and center in the discussion. If we are now going to enshrine precedent almost always, then what happened to that fetal viability precedent in Roe?

    What rights are you talking about.  Roe holds nothing at all about the rights of the unborn.  It only  holds, incorrectly in my view, that a mother’s nebulous right to privacy covers the case of abortion.   Of course it can’t place the right to an abortion anywhere in the constitution.  It finds it “emanating from the penumbras”.  (I know that is  Griswald, but the logic in Roe is no less sloppy and at least Griswald makes an attempt to be poetic.)  It seems like you are  trying to import a Right to Life into Roe and that isn’t there or enshrine a right to abortion but provide some limit to it.  That is essentially a wholescale retcon of Roe.   The court already attempted this in Casey with bad results.  Ultimately the problem with Roe is either it takes a political decision out of the political process and it puts it in the court.    

    BTW, anyone who thinks the Alito draft will in the end restrict abortions needs their head examined. If Alito is retained abortion will be just a short drive away to get a pill to do the deed almost everywhere.

    True, it won’t but it will return the question to the political branches and that technology at the moment would restrict abortion to 10 weeks, which some people would call a partial win.   Ultimately the courts need to get out of conventional politics.  Abortion likely is a problem that has to be solved at a state level if it is going to cease to roil or federal politics and corrupt our judicial system.

     

    • #8
  9. Gary Robbins Reagan
    Gary Robbins
    @GaryRobbins

    I agree that Roe was wrongly decided, however I have had four women tell me uninvited that they are livid with Roe being struck down.  They tell me that one state is going to punish women, and I point out that that is only a proposal that has not been enacted.  We could very well lose the midterms over this.

    • #9
  10. Raxxalan Member
    Raxxalan
    @Raxxalan

    Gary Robbins (View Comment):

    I agree that Roe was wrongly decided, however I have had four women tell me uninvited that they are livid with Roe being struck down. They tell me that one state is going to punish women, and I point out that that is only a proposal that has not been enacted. We could very well lose the midterms over this.

    It is possible; however, I don’t think it is likely.  First of all nothing has happened yet.  Second, people don’t completely understand what overturning Roe would mean.  Finally how much currency will this have broadly with the kitchen table issues cutting the wrong way.  If Republicans lose the midterms it will be because of either widespread voter fraud or poor candidate selection.

    • #10
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