Roe created a constitutional crisis that has never died but only expanded from one forum to another.
Forty-eight years after the Supreme Court’s decision in Roe v. Wade, expectations seem to be rising that the Court could overturn it sooner or later. At the vice-presidential debate on October 7, the moderator asked the candidates what the states should do if Roe were to be overturned. An abortion-rights litigator told NPR at year-end, “Everybody thinks that we might be on the cusp of [Roe] being overturned.”
When asked at her Senate confirmation hearings whether Roe was “super-precedent” like Brown v. Board of Education, Justice Barrett forthrightly replied: “I’m answering a lot of questions about Roe, which I think indicates that Roe doesn’t fall into that category.” Though obvious, this is more than any previous Supreme Court nominee since 1973 has been willing to admit: Roe isn’t settled law.
Settlement is the essence of the rule that judges apply to precedent; indeed, stare decisis et non quieta movere translates as “to stand by decisions and not disturb what is settled.” If unsettled, a prior decision is due less respect, because there are evident problems with it. If settled, judges ought to have a compelling reason to reexamine it.
Abraham Lincoln made this point in 1857 against Dred Scott, a 7–2 decision like Roe:
If this important decision has been made by a unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part based on assumed historical facts which are not really true . . . it then might be . . . factious . . . to not acquiesce in it as a precedent. But, when . . . we find it wanting in all these claims to the public confidence . . . it is not even disrespectful to treat it as not having . . . established a settled doctrine for the country.
When has Roe ever been settled? After two original dissents, Congress proposed and debated numerous constitutional amendments to overturn it between 1973 and 1983. Judicial and scholarly criticism continues to this day. Twenty-five to 30 states constantly test the limits of Roe with legislation, sparking test cases in the Supreme Courts every few years. Today, there are 50–60 abortion cases in the federal courts. Roe created a constitutional crisis that has never died but only expanded from one forum to another.
Roe is unsettled because of its inherent defects. It was poorly reasoned and constructed, with no evidentiary record, based on hunches, assumptions, and prejudices.
As Yale Law School professor John Hart Ely emphasized in the most influential legal critique of the Roe decision, “What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure.” Furthermore, he contended that Roe is a “very bad decision” because it is “bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.”
Then there is the extremely broad sweep of Roe. As Ely observed, “Even after viability the mother’s life or health” which is “defined very broadly . . . to include what many might regard as the mother’s convenience . . . must, as a matter of constitutional law, take precedence over . . . the fetus’s life.” Ely noted that “the Court does not see fit to defend this aspect of its decision at all.”
Because of Roe, the U.S. is one of only seven nations — of 195 across the globe — that allows abortion for any reason after five months of pregnancy.
In contrast, 30 states since 1973 have passed laws that treat the killing of a prenatal child (outside the context of abortion) as homicide from conception.
There has been no consistency or predictability in the Court’s application of Roe, as its decision last summer in the Louisiana case (June Medical v. Russo) showed once again. The Court keeps flip-flopping from case to case in defining the standards it imposes on the states when they regulate abortion.
Roe has been subject to unrelenting criticism inside the Court. Justices Byron White, Sandra Day O’Connor, and Clarence Thomas have each highlighted the unprecedented role the Court adopted in Roe: “The country’s ex officio medical board with powers to disapprove medical and operative practices and standards throughout the United States.” That role is beyond the Court’s capacity, and it has failed.
The abortion rate — and “reliance” on abortion — have dropped dramatically since 1992. If women and men in America rely on anything, it’s contraception, not abortion.
Then there are the unanticipated consequences from a decision that was poorly informed. The justices were fairly blindsided by obstetrical ultrasounds when they came on the medical market a few years after Roe, and ultrasounds have permanently changed public understanding of prenatal development.
Finally, public opinion keeps Roe unsettled. As University of Virginia sociologist James Davison Hunter has demonstrated, polls that ask whether Americans “support Roe” are worthless because few Americans can describe what Roe did. Much more reliable are specific polls about abortion policy. For example, when asked specifically, a supermajority of Americans believe abortion should be illegal after the first trimester.
Today, there should be no reasonable expectation that Roe will remain the law. The abortion laws passed by red and blue states in 2019–2020 indicate that both expect the Court to overturn it sooner or later. To be sure, immediate change would be limited. If Roe were overturned today, 35 or more states have no prohibition on the books before 20 weeks of pregnancy.
The Roe decision centralized the abortion issue in the Court and thereby made the Court the focus of abortion politics. But the Court ultimately cannot fix the decision — as it has tried and failed to in the past — nor can it definitively settle the issue itself.
To protect its own legitimacy, to prevent venomous campaigns of personal destruction against Supreme Court nominees, and to restore constitutional balance, the Court can do nothing better than to decentralize the matter and return it to the states, where public policy can be better aligned with public opinion.
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