Roe, Wade and the American Dream

“The Court [is] literally taking America back 150 years,”

proclaimed our President in response to the outcome of Dobbs v. Jackson Woman’s Health. The decision overturned the landmark cases of Roe v. Wade & Planned Parenthood of Southeastern Pa. v. Casey that conferred “wom[e]n [protection] from unduly burdensome interference [upon their] freedom to decide whether to terminate [their] pregnancy.”¹ The President admonished the decision due to his support for universal access to abortion. However, the Supreme Court was not and should not be guided by the policies it regards as desirable but rather by the provisions of our Constitution. To thoroughly understand the decision, we must first discuss Roe itself.

A single pregnant woman (Roe) challenged the constitutionality of a Texas statute that prevented her from obtaining an abortion legally. The law was declared vague and over-broadly limiting to the plaintiffs’ Ninth and Fourteenth Amendment rights by a three-judge panel. The Supreme Court granted review on appeal and held that criminal abortion laws, like the Texas statute in question, violated the right of privacy contained in the Due Process Clause of the Fourteenth Amendment. It considered privacy broad enough to include a woman’s qualified right to terminate her pregnancy.

Justice Blackmun, writing for the majority, grounded the right in the Fourteenth Amendment but somehow also suggested it could be elsewhere. The majority opinion reads: “This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”² This shaky judicial reasoning exemplifies the issues with Roe and provides the rationale for its overruling.

The issues with Roe are evident even to those who support its policy outcomes. The Court clearly knew this as it “did not declare an unqualified ‘constitutional right to an abortion[‘ in Roe]”³ as they had to recognize “[the state’s] legitimate interest in protecting the potentiality of human life”⁴. Even though it is conventional Constitutional doctrine that where reasonable people disagree (as they might in this case), the Government is free to adopt one position or another⁵, the Court decided to rule anyway. Justice White characterized Roe in his dissent as an imposition of the Court’s values and criteria upon peoples and legislatures throughout the nation.

The Court’s use of “raw judicial power”⁶ is problematic enough, but its liberal use of the Fourteenth Amendment was hazardous. The plurality opinion in Casey justifies this cavalier judicial doctrine by quoting justice Harlan, who wrote that “[liberty] is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints.”⁷ This definition is dangerous and useless because any proposed right could then be justified by the Constitution despite being clearly baseless (e.g., adult incest, polygamy, and suicide).

Understanding the Fourteenth Amendment so expansively is also inconsistent with Glucksberg, where the Court determined that for rights to be protected by it, they had to be: contained explicitly in the Constitution or, if implicit, “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”⁸ These limiting criteria are necessary to curb judicial authority; it is relevant to remember Justice Curtis’ warning that when a strict reading of the Constitution is disregarded then we become a government of men who determine the text to be whatever is convenient at the time⁹.

The majority in Roe provided no clear evidence that abortion was a right retained by the People and, therefore, protected under the Fourteenth Amendment. Despite a limited historical review that ranged from the irrelevant (abortions in antiquity) to the incorrect (that common law likely never prohibited abortion), the Supreme Court in Roe disregarded entirely the fact that abortion had been a legislative matter for the entire history of the U.S. and upended the laws in all 50 states.

Suggestedreading

Venezuela and Colombia Restore Diplomatic Ties

August 30, 2022

262

A few Thoughts About Populism

July 25, 2022

310

Latin America: from a time of changes to a change of time

July 16, 2022

291

On Venezuela’s Migration

July 15, 2022

275

Casey could be seen as correct in sustaining Roe, despite its faulty legal reasoning, due to stare decisis (a principle calling for the respect of precedent) and because of the “the fundamental constitutional questions [Roe] resolved.”¹⁰ However, while it might be insufficient to overrule Roe due to its incorrect reasoning alone, to sustain it blindly based on stare decisis is to commit to a flawed decision that further embroils the Court in controversy and removes a sensitive issue from the democratic process. Justice Scalia dissented in Casey and asserted that in matters of great national controversy, the Court further damages the Country by closing all democratic outlets for the settling of these deeply contested issues. He closed by writing, “[the Court should] get out of this area, where [the Court has] no right to be, and where we do neither [the Court] nor the country any good by remaining.”¹¹

The Court certainly can, and should, correct judicial decisions it feels are misguided and damaging to the Country and the general rule of law. The majority opinion in Dobbs evaluates “…five factors [that] weigh strongly in favor of overruling Roe and Casey: the nature of their error, the quality of their reasoning, the ‘workability’ of the rules they imposed on the Country, their disruptive effect on other areas of the law, and the absence of concrete reliance.”¹³ The nature of the error and quality of reasoning in both Roe and Casey is evident. The “undue burden” standard implemented in Casey was found to be highly subjective and problematic by the majority in Dobbs because it allows any judge to effectively exercise his personal views by simply qualifying any regulation as “undue.”

Further, the majority in Dobbs wrote: “Members of this Court have repeatedly lamented that ‘no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion.’ Thornburgh, 476 U. S., at 814 (O’Connor, J., dissenting)”¹⁴ and also that Roe has done much to damage longstanding judicial doctrine such as: “diluted the strict standard for facial constitutional challenges (…) the Court’s third-party standing doctrine (…) standard res judicata principles (…) the ordinary rules on the severability of unconstitutional provisions as well as the rule that statutes should be read where possible to avoid unconstitutionality [a]nd (…) [it has] distorted First Amendment doctrines.”¹⁵

Finally, the opinion discounts the presence of concrete reliance due to abortion being spontaneous and a generally unplanned act. Broad societal reliance on the notion of a right to abortion was judged as being vague and unclear. For these factors, stare decisis was ignored, and the Court decided to correct the wrong decisions of Roe and Casey and’ return [the] authority [of regulating or prohibiting abortion] to the people and their elected representatives.”¹⁶

The decision’s detractors are painting this outcome as, how POLITICO described it, the Court’s conservative majority “flexing its muscle.”¹⁷ Prominent national figures such as democratic Representative Alexandria Ocasio-Cortez called it a right-wing assault on our institutions. Even the dissent in Dobbs injects fear and uncertainty into the public by claiming that other rights are threatened, e.g., to purchase contraceptives and to marry a partner of the same sex (due to their reliance on the Fourteenth Amendment)¹⁸. Unfortunately, this outcry is the Court’s own doing: in the latter half of the 20th Century, it departed from what the Constitution says and started ruling on what it ought to say (like it did in Roe).

Many actors in our society are quick to point to this as evidence of our “dysfunctional system.” The Economist magazine published a confused article¹⁹ that laments how America’s laws do not represent its people’s will (and also criticizes that abortion is now subject to democratic governance). Unfortunately, both ends of the political system are willing to denigrate American institutions and seem ready to replace them with a technocratic, populist or despotic rule.

It is disheartening to see Americans losing faith in our institutions. Even the Atlantic calls for us “build a new set of political institutions that are both more responsive to the views and interests of ordinary people, and better able to solve the immense problems [of] our society…”²⁰ However, as Alexis de Tocqueville once famously wrote: “America is great because she is good.” Faith in our institutions, principles, and system have created our prosperity. This statement becomes evident when we realize our forefathers already provided a solution to our problems: “to the end it may be a government of laws, and not of men.”

Many Americans might attribute the uniqueness of our position (regarding political freedoms, prosperity, and prominence) to the protections in our bill of rights, or worse: to chance. The true source of our exceptionalism, however, can be found in the clause preceding the one quoted previously: “In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be a government of laws, and not of men.”

Justice Scalia brilliantly said that it is not just a set of principles or rights that set our nation apart but our Constitution itself (where the Constitution can be understood as the structure). Freedom has reigned in the American continent for generations. The liberty of the “noble savagery” of American natives echoed in the European mind and upended longstanding ideas of governance. The old continent returned a challenge to America, to guide it into a new world where its freedoms could be realized in a civilized society. Our founding generation embraced that challenge and understood that the only way to overcome it was to protect the individual from the overreaching control of the Government, which they did by creating a system where power fought power.

Beyond the political branches, the judiciary was given, as Hamilton wrote, “neither force nor purse, only judgement.” In returning to these ideas, Dobbs’s monumental contribution to our democratic process and advancement of our exceptionalism is evident. It represents a departure from the activist and political Court of Roe, to one that is respectful of the Constitutional text but also cautious to preserve our rule of law. Despite arguing against using the Due Process Clause to create new rights, the majority affirmed other rulings that have not proved as problematic as Roe by: “emphasiz[ing] that [Dobbs] concerns the constitutional right to abortion and no other right. [It] should [not] be understood to cast doubt on precedents that do not concern abortion.”²¹

Justice Blackmun once famously wrote: “In one sense, the Court’s approach is worlds apart from that of THE CHIEF JUSTICE and JUSTICE SCALIA. And yet, in another sense, the distance between the two approaches is short-the distance is but a single vote. I am 83 years old. I cannot remain on this Court forever, and when I do step down, the confirmation process for my successor well may focus on the issue before us today. That, I regret, may be exactly where the choice between the two worlds will be made.”²² Today, we face a Court that overturned Roe because of its change in composition and a solution to that controversy through the confirmation process. Thankfully, it is due to the strict adherence of those judges to the Constitutional text and not their ideological biases. To ensure fairness in the system, we must closely follow our Constitutional blueprint and preserve its balance. Dobbs is but a step in the right direction, but We The People have much work to do, for as President Reagan said: “liberty is never more than a generation away from being lost.”

Footnotes.

1. See Maher v. Roe, 432 U. S. 464, 473-474 (1977).
2. See Roe v. Wade, 410 U.S. 113, 154 (1973).
3. See Maher v. Roe, 432 U. S. 464, 473-474 (1977).
4. See Roe v. Wade, 410 U.S. 113, 163 (1973).
5. See Ferguson v. Skrupa, 372 U. S. 726 (1963)
6. See J., White Dissenting Roe v. Wade, 410 U.S. 113, post 221 (1973).
7. See Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 849 (1992).
8. See Washington v. Glucksberg, 521 U.S. 702, 721 (1997).
9. See J., Scalia Dissenting Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 985 (1992).
10. See Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 846 (1992).
11. See J., Scalia Dissenting ibid. at 1003.
12. See Opinion ibid. at 869.
13. See Dobbs v. Jackson Woman’s Health Organization, 597 U.S. __ (2022).
14. See ibid.
15. See ibid.
16. See ibid.
17. See Berg, Matt, and Olivia Olander. “The Major Abortion News in the 4 Days since Roe v. Wade Was Overturned.” POLITICO, https://www.politico.com/news/2022/06/27/abortion-news-roe-v-wade-overturned-00042536.
18. See J., Kagan dissenting Dobbs v. Jackson Woman’s Health Organization, 597 U.S. __ (2022).
19. Foreman-Peck, Ellie. “America’s New Exceptionalism.” The Economist, The Economist, 07 Jul. 2022, https://www.economist.com/leaders/2022/07/07/americas-new-exceptionalism.
20. See Mounk, Yascha. “America Is Not a Democracy.” The Atlantic, Atlantic Media Company, 31 Jan. 2018, https://www.theatlantic.com/magazine/archive/2018/03/america-is-not-a-democracy/550931/.
21. See Dobbs v. Jackson Woman’s Health Organization, 597 U.S. __ (2022).
22. See J., Blackmun Concurring In Part and Dissenting In Part Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 944 (1992).