Constitution

After Roe v Wade?

Introduction

An extraordinary leak of a draft decision from the US Supreme Court strongly suggests that the majority of the court is leaning towards overruling its landmark precedent in Roe v Wade.  This has caused a great deal of public excitement.  

Before we get into the legal issues, let’s dispense with the politics.  Someone who is militantly either “pro-choice” or “pro-life” may try to distort what I am saying in this post to suit their advocacy, even though this blog post does not take any position on the abortion issue.  However, the only purpose of this post it is to help my readers to understand better the context in which this judicial decision will be made, based on the question now before the court.  For an insightful analysis of these issues I recommend David French’s Atlantic article.

Contrary to popular misconception, as David French explains, the question before the court is not “Should women have the right to abortion?” but rather, “Does the US constitution create certain abortion rights?”  Failing to recognize the distinction between the “ought” and the “is” would leave us unable to understand the court’s job, and to judge whether it is doing its job properly.

While the political party of the president who appointed each of the judges cannot be ignored, we should be cautious not to assume that everything is explained by partisan politics. Different principles of constitutional interpretation and differing views of the role of the judiciary can also influence the outcome.

The 1973 Roe decision interpreted the U.S. constitution as having an implied privacy right, which included a right to have an abortion without government interference, at least in the first trimester of pregnancy.  However, in 1992, in Planned Parenthood v Casey, the court, while saying that it was upholding Roe, actually narrowed it. It changed Roe’s constitutional basis from “privacy” to “liberty”, but also expanded the scope for government control, provided that the governments did not create substantial and unduly onerous impediments to abortion.  What is an acceptable versus unacceptable impediment has, since Casey, been the subject of much litigation.  For a fair, brief description of the arguments and outcomes in Roe and Casey I recommend viewing this: https://www.youtube.com/watch?v=cz5tlPnGUOs

Assuming that the final decision of the Supreme Court will be substantially the same as the leaked draft, what might happen next?

That depends in part on the grounds on which the court overrules Roe, and what, if anything, the court replaces it with.  As well, in the short term, that depends on what various US state legislatures do or do not do, and what Congress does, in response to the overruling of Roe.  In the longer term, however, judicial decisions on abortion will also depend on the facts in future cases, and future appointments to the Supreme Court.  In any event, there will continue to be sharp controversy, unless a new post-Roe compromise is found that most Americans can live with.

A Thought Experiment About Compromise

I was a law student in 1971, while Roe was working its way up the judicial ladder.  One of our professors suggested an interesting thought experiment about the legitimacy of abortion law in a divided society.

Assume a country in which exactly 50 percent of the population is in favour of permitting abortions and exactly 50 percent is opposed to it.  What should the abortion law be in such a country in order to be legitimate?  Somewhat mischievously, the professor suggested that the right answer would be to alternate, by allowing abortions one week and prohibiting abortions the next week. 

The class laughed, recognizing the absurdity of this “solution”.  The conclusion?  In an equally divided society with an all or nothing binary choice there was simply no way to enact a law that would be fair to all, or even to the majority of the population. 

Now let’s assume the same country is split 60/40.  Would it be legitimate to say that, whatever its position on abortion, the 60 percent majority should rule?  If majority rule was the only applicable principle, the answer would be yes.  But there is more.  One of the principles of American democracy, like democracies elsewhere, has been to try to prevent the tyranny of the majority through constitutional guarantees of individual rights, which would overrule any legislation that infringes those rights.  However, courts cannot overrule legislation if the individual rights asserted are not found in the constitution.  And the US constitution, created centuries ago, doesn’t specifically mention abortion anywhere. 

The Two Ways Of Interpreting Constitutions

To establish a right to abortion today (with whatever limitations for fetal viability) would require either (i) a constitutional amendment to add a right to abortion, or (ii) an interpretation of the existing constitution that found this right to abortion to be implied by other constitutional language.  In Roe, the court “found” it to be included in the right to privacy, a rather large leap because the word “privacy” itself is not found in either the U.S. constitution or its amendments.  Finding such an unwritten right through finding “privacy” has been part of the controversy over Roe. Here’s why.

There are two generic ways of adjudicating constitutional issues: strict/literal construction and contextual/purposive interpretation.  Sometimes the same judicial decision will include elements of both.  How much of which method is used will often explain the result.

The Strict Construction View

A strict construction approach would conclude that absent specific language in the constitution granting a right, that right is not constitutionally protected.  The draft Supreme Court decision overruling Roe emphasizes that the constitution says what it says, not what some might wish it to say. 

If a democratic country doesn’t like the constitution as written, a strict constructionist would say that the constitution should be amended through the established amendment process.  Judges cannot give themselves the right to amend the constitution by calling it their “interpretation”.

Strict construction is often criticized because it is very difficult to amend the constitution, even one that has, in some respects, revealed its gaps through the passage of time.  It is therefore possible for strict constructionists to defeat the very purpose of the constitution by insisting on a purely semantic analysis.

The Contextual/Purposive Interpretation View

The other judicial approach holds that the constitution should not be seen as written in stone. The task of the court, on this view, is to try to understand the purpose of the constitutional provision in issue, and to try to give it a modern interpretation that achieves its intended purpose.  This gives the judges greater latitude than the strict construction approach. But it also poses the risk that creative interpretations based on currently popular political views will be imposed by hanging them on a judicially invented constitutional hook.  This creative approach may also have reduced respect for precedents. 

Even judges who generally favour this purposive approach will sometimes be critical of judges who they see as taking excessive liberties with interpretation.  For example, the late Justice Ruth Bader Ginsburg, an ardent, lifelong feminist, was critical of the Roe decision despite approving its result, because (i) the court used wrong, highly vulnerable constitutional reasoning and (ii) its decision went much further than necessary in overruling the Texas law. 

Like other courts, the US Supreme Court is divided on which of these well-established approaches to constitutional interpretation should be applied in particular cases.

Courts, Legislatures and Constitutions

If the draft Supreme Court decision becomes final and overrules Roe it would permit a wide variation among state abortion laws, some strongly in favour, some strongly opposed.  In effect, the court would be deciding that in the absence of a constitutional right, abortion is not a constitutional issue.  It is a political question, to be determined first at the legislative level, and then at the ballot box, but not at the courthouse. 

Turning the issue over to the legislatures will be criticized.  Yes, it is the job of elected representatives and not judges to enact the laws.  However, to protect citizens from the tyranny of the majority there are constitutional limits on what legislatures can legislate.  Governments cannot be trusted to decide for themselves whether their own legislation falls within or outside constitutional limits.  Only the courts can do that.  Viewed this way, the courts are not making law in the same way as legislatures, they are reviewing legislation for constitutional compliance.  That is the exclusive right of the judiciary in a democracy.  It is therefore wrong for a court to refuse to do its job by tossing the problem back to the legislature.

In response to such criticism it will be argued that the role of the court is to interpret the constitution the way the constitution is written, not to read into it language that is not there, by so-called implication.  If the authors of the constitution had intended to protect some right or other they would have said so in the constitution. Therefore, if the country has not amended the constitution it should stay as it is.  Activist judges assuming the power to read new rights into the constitution would be usurping the role of the legislature.

These different positions on the role of the judiciary in applying versus interpreting the constitution have long-standing traditions of support.  Therefore, it would be opportunistic for journalists and politicians to insist upon one or the other judicial approach when it leads to the result they like, but to demand the opposite approach in another case if that gets result they like. 

Complicating the analysis, however, is that Roe has settled the law for five decades, and the arguments now made against it have been repeatedly rejected.  This brings us to the role of precedent.

Roe Has Been the Law for Half a Century

An argument from precedent, like so many other legal arguments, is a two edged sword.

In support of treating precedents as binding, it is said that if a court does not respect its own judgements enough to follow them, who will?  Also there is the need for stability and predictability.  Any Supreme Court decision in force for decades will have created extensive reliance upon it.  Numerous statutes will have been based on it, as will numerous judicial decisions.  The citizenry will have invested time and money to create institutions to build upon, or to mitigate, the impact of the decision.  It is, arguably, unfair and unreasonably disruptive to interfere with long-standing precedent.

On the other edge of the sword, just because a decision is old doesn’t mean it is good.  A decision that has been wrong for half a century has been harmful for half a century, and cries out for harm reduction.

At bottom, the argument for or against treating a precedent as continuing to be binding depends upon whether the court considers the result of overruling it to be better or worse than the result of retaining it.

Does the US have Two Constitutions?

The US has a unique tradition of vigorous partisan disputes in reviewing proposed presidential appointments to the Supreme Court.  The appointment depends on which political party has enough votes to approve or reject a presidential nominee.  At times the US Supreme Court has been dominated by Republican appointees, and at other times, by Democrat appointees. This has sometimes led to differing interpretations of the same constitution by Republican and Democrat dominated courts.  There might be some truth in saying that the US has two constitutions, with different outcomes in particular cases, depending on which party’s appointees formed the court’s majority.  However, the current Republican majority on the Supreme Court is not permanent, so its constitutional decisions may well be overruled by a future Democrat majority court.

The Limits of Constitutions

Students in US schools are taught to be proud of the US constitution.  However, constitutional protections have limited effectiveness, as was seen for decades during which the US Supreme Court accepted that slavery and racial segregation were not unconstitutional.

The Soviet Union had a wonderful constitutional rights guarantees but did not prevent Stalin from killing millions of Russians and Ukrainians, including through starvation.  It did not prevent gulags or disappearances and assassinations by the secret police. 

The modern Russian constitution, published here, provides that political diversity and the multi-party system shall be recognized in the Russian Federation. Nevertheless, that has not prevented Mr. Putin from running the country as a one-party state, while his opponents have been imprisoned or victims of attempted or successful assassinations.

Even in constitutional democracies like the US and Canada, it would be naïve to expect too much from constitutions.  The political consensus in a country, the extent of its shared values and the attitudes of the judiciary, not the constitutional wording, will determine its effectiveness in preventing tyranny, whether of the majority or the minority. 

Why are Rights Limited?

Everyone talks about, and assumes that they have various rights, simply because they believe they ought to have them.  But wishful thinking doesn’t create enforceable rights.  Every such right must have a clear legal or constitutional basis. 

If you claim a right to something and no one disputes your claim you can enjoy that right.  However, if someone denies your claimed right, or does something that infringes it, then you either give up the right or find a means of protecting or enforcing it.  Typically, you would have to bring a court case or file a complaint before a regulatory body such as a human rights commission.  But the result will often be uncertain.  That is because (i) rights (such as the right to liberty) have numerous potential meanings and unspecified limits, and (ii) legislatures have created ‘rights inflation’ by legislating more rights than can be exercised without conflict.  A clear example today is the conflict between self-identified trans women and some feminists, who oppose some trans women’s claims to the right to use women’s washrooms, or to be admitted to battered women’s shelters or to compete in women’s sports.  Yet both parties to these conflicts have been given these conflicting rights. When rights collide someone else must decide which rights shall prevail, and to what extent. 

Conclusion

If the US Supreme Court overrules Roe v Wade, the decision will have a massive impact.  Some of that impact is predictable: different states will enact laws that either severely limit, or actively facilitate, access to medically safe abortions.  However, as the composition of the Supreme Court evolves, the long-term result may evolve in a different direction.

The lesson to be learned is that if there is ever to be peace on this highly divisive issue it can only be through an acceptable compromise rather than a succession of alternating victories.  A good compromise is better than a bad victory.  But a good compromise will require something better than allowing and prohibiting abortions on alternate weeks.  And soon, it may require something better than Roe v Wade.

4 replies »

  1.  ” The new buzz phrase is try to be less woke. The PR firm is advising CEOs of their right to remain silent on abortion. Legum reported that Zeno’s Katie Cwayna sent an email to the Woke, saying, “Do not take a stance you cannot reverse, especially when the decision is not final. This topic is a textbook 50/50 issue. Subjects that divide the country can sometimes be no-win situations for companies because regardless of what they do they will alienate at least 15% to 30% of their stakeholders… Do not assume that all of your employees, customers or investors share your view.”

    Legum ended the column, “(While Cwayna claims overturning Roe is a 50/50 issue, 72% of Americans oppose overturning Roe, according to a January poll by Marquette Law School.)”

    Whatever.

    While he could not bring himself to explain why Zeno suddenly went from Woke to Nope, we all know why.

    Disney.

    That’s right. The company tried to bully Florida legislators into defeating the Don’t Groom Kids bill with threats of withholding campaign donations.

    But DeSantis pushed back and pushed Disney over. Not only are teachers banned from talking about sex to pre-pubescent kids under this new law but Disney World lost its exemption to most state laws and most state taxes. The Magic Kingdom is no longer above the law in Florida.

    On top of that, Republicans may let Disney’s copyright on Mickey Mouse expire in 2024 — 40 years after it originally was supposed to end.

    Disney’s support of letting LGBT teachers recruit kids has forever tainted its products as pedo friendly.

    The message is clear. Don’t want none, don’t start none.

    Zeno has gone from Woke to Let Sleeping Dogs Lie in just 6 weeks.

    Thank you, Florida.”

    Sent from my iPhone

    >

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    • John,

      I am not surprised at a PR firm recommending against its clients taking a strong position on a draft decision which may be changed and risk looking foolish when the final decision is released. But I have some further thoughts to share with you and other readers.

      As Ruth Bader Ginsburg predicted in her New York University Law Review article in December 1992, when judges get too creative with new doctrines that go beyond deciding what is necessary to determine the case before them they can create serious problems:

      “Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable. The most prominent example in recent decades is Roe v. Wade. ….

      …. Justices generally follow, they do not lead, changes taking place elsewhere in society. But without taking giant strides and thereby risking a backlash too forceful to contain, the Court, through constitutional adjudication, can reinforce or signal a green light for a social change. In most of the post-1970 gender-classification cases, unlike Roe, the Court functioned in just that way. It approved the direction of change through a temperate brand of decisionmaking, one that was not extravagant or divisive. Roe, on the other hand, halted a political process that was moving in a reform direction and thereby, I believe, prolonged divisiveness and deferred stable settlement of the issue.”

      If the Roe court had exercised the restraint that Ginsburg advocated, it should have overruled the Texas law for being too extreme, and then, should have left it to a future court to decide other issues such as when it would be too late to have an abortion.

      Subsequent US courts have narrowed Roe, even while professing to be relying upon it. This was essentially cosmetic: avoid criticism for overruling Roe, while changing its constitutional foundation and reducing its overreach.

      Despite its limited constitutional effect today, Roe has remained a highly emotional symbol, worshipped by those who see it as the only barrier to state regulation of women’s bodies, and demonized by those who see it as licensing the immoral termination of human life.

      Ginsburg was right, 20 years ago, in seeing that Roe had prolonged divisiveness and deferred stable settlement of the issue. If the leaked draft decision becomes the final decision, it will be the backlash that Ginsburg warned about. If after overruling Roe the court puts nothing in its place to protect women’s autonomy, it will be criticized for the same faults as Roe, for “taking giant strides and thereby risking a backlash too forceful to contain…”, and creating “prolonged divisiveness and deferred stable settlement of the issue”.

      If, 50 years after Roe, the US is to replace alternating backlashes with a stable settlement of this highly divisive issue, it will require greater judicial restraint and fewer “giant strides” – in either direction.

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  2. Agree that a compromise will have to be reached if a stable settlement is to be achieved. I see this process as political, not primarily judicial (as the failure of Roe so vividly illustrates.) If the Court has to invent rights in order to advance social policy, as in RBG’s wonderful “doctrinal limbs” phrasing, it won’t stick.

    Nearly all abortions in the United States, Canada, and other rich countries are done within the 15-week window allowed by the Mississippi law which led to the vacation of Roe. (In this sense, Planned Parenthood made a grave tactical error. It they had just lived with the new law and not appealed it, Roe would still be law, at least until the next case reached the Court. SCOTUS might well have upheld Roe in the challenge of a law that banned abortion from conception, or after “heartbeat”. The Mississippi law, being rather moderate, perhaps tempted the Court to reject Roe over it. But now Roe is gone and those extreme laws cannot be challenged. Not all have even passed their legislatures, I remind.)

    Pregnancy tests available over the counter become positive very early, many abortions are done now with pills, and there is hardly any condition now (other than ectopic pregnancy) where abortion is necessary to save the mother’s life, which Mississippi does allow at any time. Medical emergencies after 15 weeks where the fetus dies during efforts to save the mother’s life are not subject to prosecution. So what, exactly, is the abortion controversy now about? Does the pro-choice position require them to insist on the extra 5 weeks that Roe permitted? Or is it really that they cannot abide any restrictions at all on abortion at any time up until birth, in the political quest for women’s autonomy? There is not 72% support for the notion that abortion ought to be available with no restrictions at all. So what are they trying to achieve with “Keep your laws off my body!”? Total victory for the thrill of it?

    I think the Mississippi law could be a model abortion law for states that want to have one. Abortion for rape and incest, just as for any reason at all, is allowed up to 15 weeks. Does it take you longer than that to decide you don’t want to keep your rapist’s (or your father’s) baby? This is the type of compromise position that the 72% nationally probably support. And do we know what proportion of people in the restrictive states support a more liberal position than their state legislatures espouse? Since abortion is now a state matter, it is irrelevant what a national polling sample of abortion thinks, as its view will be dominated statistically by residents of states with large populations who are more liberal in their abortion views but who don’t vote in Louisiana.)

    The Mississippi law declares by its existence that a woman does not have the sole autonomous right to abort her own fetus, nor do women have the sole right, as women collectively, to make abortion policy. (The “is” not the “ought”.) This is appropriate in a contentious public issue where at least some people believe there are two lives involved here, even if they concede that neither has a Christian soul endowed at conception. If the residents of both sexes of a state, through their elected representatives, decide that the decision ought to be up to the woman and make no law at all (as Canada does, by default) that is up to them. But it is not up to women, acting as women and excluding men, to make the law. If women want to see abortion liberalized in Red states at all, they need to find out how the Mississippi compromise was reached, and replicate it.

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    • I agree with you that the solution will have to be political rather than judicial. But that time (with so many states) maybe 50 years away or longer. In the meantime we can be sure there will be more litigation and a patchwork quilt of decisions among the states.

      Whether the abortion laws actually prevent women who want an abortion from getting one is factually debatable, especially if they can go to a nearby state that permits it, or by using pills if it is early enough. But facts and evidence are not what this debate is about. It is about enforcing on the country strongly held beliefs about when human life begins and what choices women should have. In support of those strongly held beliefs the debate has become intensely emotional, with a strongly felt the need to win at the political and judicial levels. This creates a binary win/lose dynamic that fosters perpetual conflict.

      The uncompromising binary is evident in the vacuous labels the two camps have given themselves: pro-choice and pro-life. If someone were to ask you whether you are pro-choice or pro-life, you would have to answer that without more information, you have to be in favour of both. Without specifying what the choice is whose choice it is and what limits there are on that choice, it makes no sense to ask whether you are for or against choice. But, generally speaking, at an abstract and unspecified level, most people would say they prefer having a choice to having no choice. Similarly, if you are asked if you are in favour of life, at an abstract and unspecified level, most people would say that they are in favour of life rather than death. None of this labelling is specific to pregnancy or the unborn, it is merely rhetorical sloganeering.

      With zealots for this sort of empty rhetoric there can never be a thoughtful compromise. Those who believe that a fertilized egg is already the beginning of a human being, so that any step to end a pregnancy constitutes infanticide or murder, will never agree to any kind of legal right to have an abortion. On the other hand, those who believe that women should have the choice of ending their pregnancy whenever they wish, without any government interference through legislation or regulation, will never agree to any statutory or governmental intrusion into their freedom to choose.

      However, from my reading, most Americans do not take either of these extreme views, but would support permitting abortion up to some unspecified stage of pregnancy, particularly if the life or health of the mother is endangered or if the pregnancy has been caused by rape or incest.

      Roe is by no means the only US Supreme Court decision which took a broad and liberal interpretation of the constitution, and characterized its novel interpretation as recognizing a right that has always been there rather than creating a new right. The Supreme Court of Canada has done this as well. It is pretty much to be expected when a country has a constitution that was written centuries ago, is almost impossible to amend today, and is expressed in broad generalities such as “life, liberty and….”. These words are essentially Rorschach tests into which you can read whatever your imagination sees.

      My law professor joked about a divided country permitting and prohibiting abortion in alternating weeks. That hasn’t come to pass, but the US may divide into alternating states, approximately half of which permit abortion (limited by some regulation) while the other half outlaws abortion either outright or by making it virtually impossible.

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