Roe, Judicial Review, and the Myth of Abortion as a Constitutional Outlier
By Eric Segall
Arguments about whether Roe and Casey should be affirmed, reversed or limited by the Supreme Court should be made without the canard that those cases are somehow different in kind than other constitutional controversies. Abortion may be (likely is) more divisive than other constitutional issues and the stakes might be much higher. But like all other constitutional interpretation questions, whether women have a right to choose depends on judges engaging in the difficult balancing of conflicting values and the imposition of judicial value judgments separate from text and history. No theory of constitutional interpretation or appropriate judicial role distinguishes Roe and Casey from hundreds of other constitutional law cases where constitutional rights will be protected, or not, by judges making difficult choices.
In Roe v. Wade, seven Supreme Court Justices signed on to an opinion detailing the substantial burdens on women and their families of abortion bans and balanced those harms against the states’ interest in the health
of the mother and life of the fetus. They came up with the famous or infamous
trimester approach which in practice resulted in a bifurcated regulation
of state abortion laws. Prior to viability, states had little authority to
regulate abortion while after viability states could ban all abortions subject
to exceptions for the health and life of the mother. Eventually, Planned Parenthood
v. Casey modified the law to allow regulations on abortion that do not
amount to an undue burden on a woman’s right to choose, but complete bans were
still unconstitutional until after viability.
There
is a myth propounded by legal scholars, commentators, pundits, and even Supreme
Court Justices that Roe as initially
decided, and later Casey, are
constitutional outliers. That, leaving aside the admittedly difficult policy
implications triggered by the issue, the Court’s abortion jurisprudence was
somehow constitutional interpretation at its worst. For example, Professor
Michael Paulsen wrote
that the problem with Roe “is that it
has absolutely no basis in the text, structure, or history of the Constitution.
No rule or principle of law fairly traceable to the text...structure, or ... historical
understanding of an authoritative decision of the people, remotely supports the
result reached in Roe. In terms of
fair principles of constitutional interpretation, Roe is perhaps the least
defensible major constitutional decision in the Supreme Court’s history.”
Similarly,
Justice White dissenting
in Roe said that “the Court engages
not in constitutional interpretation, but in the unrestrained imposition of its
own, extra-constitutional value preferences." And even the
famous liberal and pro-choice constitutional law professor John Hart Ely famously said
that Roe “is not constitutional law
and gives almost no sense of an obligation to try to be.” I could reproduce
hundreds of similar quotes concerning Roe
and its allegedly illegitimate method of constitutional interpretation.
This
criticism is utter nonsense. Roe and Casey may be right or wrong, or good or
bad, but they are both typical examples of how the Court decides, has always
decided, and will likely always decide, constitutional questions, just with larger
stakes. No reasonable person can deny that requiring a woman to carry
a fetus to term against her will is a serious denial of her personal freedom that
carries substantial unwanted consequences. It may also be true that the states’
interest in the fetus’ right to life outweighs that infringement, but that difficult balancing of important and conflicting values is
commonplace in constitutional law. As Dean Erwin Chemerinsky has said,
“the desire for value-neutral judging in constitutional cases is an impossible
quest because the need to balance competing interests is inescapable ….”
Some,
like Professor Paulsen, argue that the right to an abortion is not mentioned in
the Constitution, and therefore it is illegitimate for the Court to protect a
liberty that the Constitution does not mention, and that is what makes the
Court’s abortion jurisprudence illegitimate. But such a claim is hogwash. Prior
to Roe, the Court protected the
right of parents to control the education of their children even though such a
right is not listed in the Constitution. Prior to Roe, the Court said the
Constitution requires state legislatures to redistrict according to a
one-person-one-vote rule and contains an equal protection principle
limiting the federal government even though nether idea is anywhere mentioned
in the Constitution nor fairly derived from history.
Over
the last few years, the Court created principles of “equal state sovereignty,”
“anti-commandeering,”
and state
sovereign immunity from lawsuits by their own citizens nowhere found in the
text of the Constitution and only controversially supported by our history (at best). Just last week, Justice Thomas wrote
an opinion for the five conservatives telling Nevada that it may not open its
courts to lawsuits by its citizens against other states even though the
Constitution says nothing about limiting Nevada’s power to do so. Thomas said
that “There are many … constitutional doctrines that are not spelled out in the
Constitution but are nevertheless implicit in its structure and supported by
historical practice.”
Many
may argue that the right to terminate a pregnancy is not “supported by
historical practice.” But the right to control one’s own body is in fact
“supported by historical practice,” so much so that the Court has said competent
people have a constitutional right to refuse unwanted medical treatment (another
Court-created right not listed in the Constitution). Judges can describe all rights
narrowly or broadly depending on whether they want to support a finding the
right is “supported by historical practice.”
Whether
the United States Constitution protects a woman’s right to terminate her pregnancy
and/or how it protects such a right is not different in terms of constitutional
interpretation than whether white people have the right to not
have state universities use racial preferences, whether state workers have a right
not to pay mandatory union dues, and whether people have the right to write checks
to politicians for political purposes. None of those rights are mentioned in
the Constitution or obviously supported by historical practice, but all have been
protected by the Supreme Court.
Arguments about whether Roe and Casey should be affirmed, reversed or limited by the Supreme Court should be made without the canard that those cases are somehow different in kind than other constitutional controversies. Abortion may be (likely is) more divisive than other constitutional issues and the stakes might be much higher. But like all other constitutional interpretation questions, whether women have a right to choose depends on judges engaging in the difficult balancing of conflicting values and the imposition of judicial value judgments separate from text and history. No theory of constitutional interpretation or appropriate judicial role distinguishes Roe and Casey from hundreds of other constitutional law cases where constitutional rights will be protected, or not, by judges making difficult choices.