The Death of Roe?

No question of American constitutional law has inflamed and divided as much as abortion in the last five decades. That statement probably holds, whether directed at the judiciary, the political branches, or the public. Ipso facto, any issue of law presenting questions of such moral gravity is guaranteed to generate robust and divergent opinions across the spectrum. 

Yet few topics are fraught with such vitriol and downright nastiness as abortion. Many abortion facilities require round-the-clock security to protect medical staff and prevent harassment of patients from hostile opponents. Understandable in a nation that has experienced multiple murders of doctors, bombings of clinics, and scores of death threats directed at medical staff. America's fervent religiosity and the concomitant dogmatic thinking of large swaths of the population is undoubtedly a puissant causal factor in the perpetual divide. The foregoing is a trite observation, considering Christianity's near-unanimous condemnation of abortion as a grave moral transgression. 

In its landmark decision in Roe v. Wade (1973), the United States Supreme Court, by a 7-2 majority, held for the first time that the federal Constitution accords significant protection to a woman's right to obtain an abortion. The Court fashioned a triadic structure, whereby governmental power to enact restrictions on a woman's right to choose gradually increased during the gestational period. During the first two trimesters, state authority was at its lowest ebb and could not impede a woman's right to elect to terminate her pregnancy for any reason. At the beginning of the third trimester, with "viability" being the critical factor, the Court held that the law had a compelling interest in protecting prenatal life and hence could proscribe abortion save in the circumstances necessary to save the life or protect the health of the expectant mother. 

Roe had the immediate effect of invalidating most of the nation's laws restricting abortion and simultaneously galvanising one of the most significant political movements in opposition. Rightly or wrongly, Roe also had the consequence of halting the debate about the liberalisation of abortion laws in many States. It is entirely possible that had the Roe Court not taken such a sweeping approach to the constitutionalisation of the abortion question, the outlook would not be as bleak for women in 2022 regarding their fundamental right to bodily autonomy and reproductive freedom. 

The religious right found a home in Ronald Reagan's Republican Party, and resistance to Roe has become the sine qua non of the GOP in the last four decades. Republican Presidents have invariably sought to appoint judges who would heed the Constitution's original public meaning and whose supposed fidelity to the text of the founding document would lead them to reverse Roe and return the issue of abortion to the people's representatives and the citizens. 

One of the driving factors in the continued hyper-polarisation of the confirmation process of Supreme Court nominees has been the Roe question. One side wants to overturn the decision and its progeny, and the other seeks to reaffirm it. It is important to emphasise that when the United States Supreme Court rules on any issue of constitutional law, the only way that can be changed, short of the arduous amendment process under Article V of the Constitution, is for the Court to overrule itself. There is no quick legislative fix. 

After Roe, the Court faced numerous concrete and difficult questions regarding the regulation of abortion across the Republic. Can the law mandate a parental consent requirement for minors seeking an abortion? A spousal notification requirement? Can the States or the federal government deny funding for medically necessary abortions in their Medicaid budgets? Can the law impose a waiting period on pre-viability abortions? Mandating medical professionals to mouth government scripted "information" on the pain abortions cause to the foetus? How about a whole proscription of a particular method of abortion? Shifting majorities and pluralities on the Court gave differing answers to the abovementioned and many more issues presented. 

In Webster v. Reproductive Health Services (1989), the Court ducked the big question of whether to overturn Roe, though a majority continued chipping at its foundations. The evisceration of Roe seemed to be only one challenge away. Planned Parenthood v. Casey (1992) would squarely present the opportunity. In Casey, Roe came within one vote of being resigned to the dustbin of constitutional history. Only two Justices defended the strict constitutional regime imposed by Roe. The Casey Court's controlling opinion (despite its warning of the importance of the Court not yielding to ferocious public opposition) did, in fact, partially overrule Roe (as well as entirely overturn two prior abortion precedents). The plurality opinion threw out Roe's trimester framework and the familiar "strict scrutiny" level of review (the most unforgiving standard of judicial review of governmental regulations of personal liberties), replacing it with a hitherto unknown standard of "undue burden". Pre-viability, any wholesale prohibition of a woman's right to have an abortion amounted to a per se "undue burden". Regulation of the right would be evaluated under the rubric of whether the law has "the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." 

In Casey, Justice Harry Blackmun, the author of Roe, candidly admitted that the fate of bodily autonomy and reproductive freedom was one personnel change away on the Court - "I am 83 years old. I cannot remain on this Court forever, and when I step down, the confirmation process for my successor may well focus on the issue before us today." Since Casey was handed down in 1992, the Court's abortion jurisprudence has continued to be highly fractured, with the Casey "undue burden" standard hanging by a thread. Several Justices on the Court have vociferously called for the overturning of Roe and Casey. 

From 2006 until 2016, the constitutional status of a woman's right to choose was effectively on a 4-1-4 balance on the Supreme Court. Four Justices were reliable votes in maintaining constitutional protection; four consistently voted for abortion restrictions. One, Justice Anthony Kennedy (a member of the Casey plurality), was more idiosyncratic but could not be counted on to undo the Roe-Casey framework. In 2016, Justice Antonin Scalia, an unabashed critic of Roe and its methodology of protecting an unenumerated constitutional right, passed away. President Obama, with ten months left in office, nominated a replacement. However, the then-Senate Majority Leader, Mitch McConnell, refused to give Obama's nominee even a hearing before the Senate Judiciary Committee (the first formal step in the Senate's constitutional duty to provide "advice and consent"). Mr McConnell invented out of whole cloth a "rule" that the Senate would not confirm a Supreme Court nominee so close to a Presidential Election. He of course abandoned that "rule", when he rushed through the confirmation of Amy Coney Barrett following the death of Ruth Bader Ginsburg, the trailblazing women’s rights champion, a mere two months before the 2020 election (the "rule" did not apply because the Republicans had a majority in the Senate).

Enter Donald Trump, who said anything and everything to whip up the support of the Republican electorate. He promised to appoint judges that would vote to overturn Roe. The 45th President, who lost the popular vote, would appoint three Supreme Court Justices in his one term. The Court's rapid reconfiguration would give Roe's opponents six Justices who were - at a minimum - deeply sceptical of the Court's abortion jurisprudence. 

Buoyed by the winds of change at the High Court, Republican-controlled State legislatures began crafting legislation in open defiance of the Constitution (whether right or grievously wrong, the Court's interpretation of the Constitution is final and not amenable to legislative challenge). Of course, playing games with women's reproductive freedom and treating the womb as a property of the State is unconscionable, but that is no matter for those relishing the opportunity to roll back the years to simpler times when women would behave like ladies and do as they're told. 

The most pernicious piece of legislation originated in Texas last year. The law (SB8) proscribed virtually all abortions after six weeks. To avoid typical pre-enforcement challenges to the law and in a transparent ploy to evade proper constitutional review, SB8 afforded a vigilante-style enforcement mechanism by enabling private citizens to bring lawsuits against anyone who aids and abets a prohibited abortion or who facilitates it. Anyone from the Uber driver transporting a pregnant woman to a clinic, the clinic itself, and perhaps someone who counsels and provides financial assistance to a woman to travel out of state for an abortion could be liable. The party suing would be entitled to a minimum of $10,000 statutory damages per abortion performed, plus court costs and attorneys' fees. The law went into effect on September 1, 2021, with immediately devastating consequences. Despite its palpable unconstitutionality, the law remains in effect over eight months later. In an emergency request for injunctive relief pending appeal, the Supreme Court declined by a 5-4 margin. Again, in a second case concerning SB8, the same 5-4 majority effectively held that Texas's scheme to evade meaningful federal judicial review had succeeded. Admittedly, both of the Court's opinions on SB8 involved intricate and novel questions of procedure and posture.

Nonetheless, if Texas succeeded for a substantial period (eight months and counting) in nullifying a constitutional right through a devious restructuring of the enforcement mechanisms of the law, what is stopping other States, with different objectives, from freezing other constitutional rights? Hypothetically, California could use Texas's law as a prototype to enable any individual to sue persons in possession of a firearm and those who facilitate the sale or transfer of ownership of any firearms. Those who succeed in their suits could be awarded a minimum of $1,000,000 in statutory damages plus court costs and attorneys' fees. Florida could pass a similar law enforced through private lawsuits, allowing individuals to sue anyone criticising Republican politicians with $50,000,000 in statutory damages plus court costs and attorneys' fees. Sure, such examples constitute a slam-dunk violation of the Second and First Amendments, respectively, but if we take the Supreme Court's decision seriously, affected individuals and organisations will struggle to block the enforcement of such laws. 

If the Supreme Court overrules Roe, abortion will be immediately outlawed in about half the States. So-called "trigger laws" are ready to take effect immediately following the issuance of a Court opinion. That potentiality appears imminent and inevitable. In an unprecedented leak, a draft opinion in the pending case of Dobbs v. Jackson Women's Health Organization shows a majority of the Court is ready and willing to wipe the slate clean and overrule Roe and Casey and, by necessary consequence, dozens of other abortion-related decisions of the Court. The writing was on the wall from the moment the Court accepted to hear Dobbs. There was no conflict among the federal circuits, no novel question of law - in short, none of the orthodox elements necessary for the Court to grant a certiorari petition. The question in Dobbs is whether Mississippi can prohibit most abortions after 15 weeks. Under Roe and Casey, that is absolutely foreclosed. Thus, unless the Court finds the law unconstitutional - which appears increasingly unlikely - it faces two choices. 

First, a majority overrules Roe and its progeny, permitting legislatures to restrict and regulate abortion if a "rational basis" is theoretically plausible to justify such laws. Rational basis review is the most deferential tier of judicial review, reserved for most social and economic legislation, like minimum wage laws or debt adjustment. Such legislation enjoys a strong presumption of constitutionality, and any potential justification that could be surmised is enough to sustain it. This is the proposed avenue in the draft opinion, which would allow states a wide berth to impose restrictions and substantial obstacles on a woman's right to terminate her pregnancy. 

Second, a majority upholds the Mississippi law at the expense of further confusing this area of the law and distorting and further narrowing Roe and Casey. This avenue will, likely, be equivalent to the first one in all but name. It will hollow out any remaining constitutional protections in this field. In short, the protection of a woman's right to seek safe and legal abortions under the Constitution is a dead letter under this Supreme Court. 

Suppose the Court dispenses with Roe and Casey. In that case, the question will remain as to whether other landmark rulings based on "the right to privacy" and the "liberty" interest found in the Due Process Clause of the Fourteenth Amendment, which implied certain fundamental rights, would be vulnerable to overruling by this Court. Seminal decisions of the Court, based on the same logic as Roe, protect the right of adult couples (married or unmarried) to use contraceptives; interracial couples to marry; the right to procreate; the right to engage in intimate sexual conduct and the right of same-sex couples to marry. The draft opinion in Dobbs reassures that "nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion." This is because abortion is unique according to the opinion and involves moral issues not found in the other cases protecting unenumerated fundamental rights. Make of that what you will. The draft opinion also repeatedly stresses that the implication of fundamental rights in the Constitution must be "deeply rooted in the nation's history and tradition." By that yardstick, interracial marriage, same-sex marriage, and the right of couples to use contraception become deeply vulnerable. For most of the nation's history, all the abovementioned rights were prohibited by all States. Applying the tenor of the draft opinion, none of these rights would survive review by the Supreme Court should States start forbidding such activities and relationships. 

Abraham Lincoln opined that "the best way to get a bad law repealed is to enforce it strictly." Perhaps the medieval laws unleashed on women and the medical profession once Roe is dispensed with would awaken a new national movement and energise the "pro-choice" faction the same way Roe galvanised an entire army of individuals and organisations with the singular goal of criminalising abortion. Prohibiting something doesn't make it go away; it simply drives it underground. In the case of abortion, it will mean many unnecessary deaths and injuries for indigent women seeking back-alley butcheries from quack doctors. Whether that would prove sufficient to result in organic recognition that women are not simply incubators and baby makers and that no nation can claim to respect the equality of the fairer sex when it controls their very definition of personhood, is one of the big questions for the “United” States of America.