Questions for the Supreme Court on Abortion

The briefs have all been filed, and the oral argument has been set for December 1. The issue of abortion has been fully joined at the Supreme Court in the case of Dobbs v. Jackson Women’s Health Organization. So what can we expect?

The Background

The case involves a Mississippi law that effectively bans all abortions after 15 weeks, with an exception for medical emergencies that endanger the life of the mother or in cases of fatal fetal abnormality. This law was deliberately designed to conflict with the rule established in the Supreme Court’s infamous precedents, Roe v. Wade and Planned Parenthood v. Casey.

In accepting the case for review, the Supreme Court asked the parties to argue one key question: “Whether all pre-viability prohibitions on elective abortions are unconstitutional?” But to answer that question, two underlying questions have to be answered. Let’s look at each of these in turn. 

Were Roe/Casey correctly decided?

The two fundamental holdings in Roe and Casey were that human beings are not “persons” entitled to the protection of the Constitution until after they are born, and that the Constitution protects a woman’s ability to have an abortion. Both were egregiously incorrect.

Until the 1960’s, no court had entertained an argument that a right to abortion was required by the Constitution. That makes perfect sense. The Constitution’s text says nothing about abortion. Nothing in the Constitution’s structure implies a right to abortion or prohibits States from restricting it. Nothing in American history suggests that anyone who drafted, adopted or ratified any part of the Constitution believed that it was guaranteed.

The Supreme Court has cleverly managed to find this elusive right in the Fifth Amendment and Fourteenth Amendments’ implicit “substantive due process” rights of “bodily integrity”, “personal autonomy”, or “intimate choices”. This is all nonsense. The Court just made it all up.  

As for the non-personhood of unborn children, to paraphrase the infamous Dred Scott decision, the Court in Roe/Casey held that unborn people have no constitutional rights that born people are bound to respect and the unborn child might justly and lawfully be killed for her mother’s benefit. Again, this was egregiously wrong.

A number of amicus briefs, principally the one submitted by Prof. Robert George and Prof. John Finnes, ably prove that both at the time of the adoption of the original Constitution and Bill of Rights, and the adoption of the Fourteenth Amendment, it was accepted that unborn children were legal “persons” entitled to the respect and protection of the law.

Unfortunately, it doesn’t stop the analysis to conclude that Roe/Casey were wrongly decided. There’s a second question that has to be answered.  

Even if they were wrong, should Roe/Casey nevertheless be upheld?

This, to me, is the key question. It has been the main focus of the briefs. And it is likely to be the decisive factor in the final decision.

Respect for precedent is an important part of the rule of law. The fancy Latin term for this is “stare decisis”, which means, basically, “maintain what has been decided”. Following precedent is not an iron-clad rule, particularly in cases that interpret the Constitution. The Supreme Court has overruled many of its prior cases. The most famous example is Brown v. Board of Education.

But just because an earlier decision is wrong doesn’t mean that the Court will overturn it. In fact, it is very clear that the current justices are sharply divided on how much deference should be paid to precedent.

It is likely that the decision will come down to three of the conservatives – Chief Justice Roberts and Justices Kavanaugh and Barrett. Most of the briefs clearly tailored their arguments to appeal to one or more of them. The problem is, their track records give very little guidance about how they will rule.

They’ve all had the opportunity to say something about overturning Roe and Casey but none of them have ever done so. And at their confirmation hearings, both the Chief Justice and Justice Kavanaugh affirmed that they considered Roe/Casey to be “settled law” or “binding precedent” (Justice Barrett managed to evade the question).

The Chief Justice is known to be very conservative about overruling prior decisions. For example, in the last major abortion case (June Medical Services v. Russo), he agreed to accept the authority of a decision that he had dissented from just the prior year. If he’s going to defer to a year-old precedent that he thought was wrongly-decided, what will he do with one that’s thirty years (Casey) or fifty years old (Roe)? Add to this the Chief’s well-noted concern about maintaining the Court’s public reputation by appearing apolitical, and we’re really at a loss as to where he would go.  

Justice Barrett has written extensively about stare decisis, generally taking a moderate position that leaves room for overruling some precedents. That ultimately amounts to the classic lawyer’s answer – “it all depends”. In one major case (Fulton v. Philadelphia) since her appointment, she wrote that the relevant precedent was clearly wrong but she wouldn’t overrule it. She wasn’t convinced that there was a better legal doctrine to replace it, even though that issue was extensively briefed and was the subject of an extensive concurrence by another justice. That’s awfully close to the logical error of perfectionism – refusing to do anything to solve a problem because there isn’t a perfect solution.

Justice Kavanaugh has written that he believes the Court should only overrule precedent if it is “not just wrong, but grievously or egregiously wrong” and if it would “unduly upset reliance interests.” That’s just another subjective, ad hoc, made-up rule that really means nothing. The fundamental job of a judge is to get the law right, not perpetuate error or make it up as you go along. Who can possibly tell what anyone would see as “grievous” or “egregious” or “undue” on any particular day? This calls to mind the absurd statement by a former justice about how he could tell something was obscene – “I know it when I see it”.

The bottom line is, there’s no way to tell where these three crucial justices will land on whether to uphold Roe/Casey.

Look into the Crystal Ball

It’s generally assumed that the Supreme Court’s question – “Whether all pre-viability prohibitions on elective abortions are unconstitutional?” – can’t be answered without ruling on the continued validity of Roe/Casey. So there are several possible results that we have to be prepared for.

The ideal outcome would be for the Court to get it right this time – reject the error of Roe/Casey, declare that there is no constitutional right to an abortion, and rule instead that unborn children are “persons” entitled to all the protections of the law. But that’s not going to happen. I can’t even see the most conservative justices (Thomas, Alito, and Gorsuch) going this far.

A less-ideal but still good result would be for the Court to hold that since the text and history of the Constitution are silent on abortion, it should be up to the states to regulate it or even prohibit it. This would serve to restore bans or strict regulations on abortion in many states, although it would leave abortion legal in states where most take place – like New York. This has long been the position of Justice Thomas, and it’s possible that the other conservatives might go along.

The worst result would be to continue to uphold a constitutional right to abortion. I doubt that the liberal justices (Breyer, Kagan, and Sotomayor) could get a solid majority to uphold the legal theory (“substantive due process” and “personal autonomy”) underlying Roe/Casey. Instead, it’s possible they may convince at least two more justices to substitute a new constitutional theory. That’s similar to what happened in Casey – they retained the “central holding” of Roe but recreated a new legal standard out of whole cloth.

The likely candidate for a substitute theory is the Equal Protection Clause of the Fourteenth Amendment. This argument was a favorite of the late Justice Ginsburg. The idea is that women cannot participate in society equally with men unless they have the right to an abortion. This (frankly ridiculous) theory is an unshakeable tenet of modern feminism, and is being strenuously argued and opposed in many of the briefs before the Court. One of the best was filed by pro-life women who are successful academics and professionals, who reject it as an insulting falsehood.

This theory would subject abortion laws to a test called “intermediate” or “heightened scrutiny”. To survive this test, a law would have to be substantially related to an important government interest. That would give states much more leeway in regulating abortion, both before and after viability. This would leave us better off than we are under Roe/Casey, but far short of our ultimate goal of eliminating abortion.

There are a lot of other issues in play, but the ones I’ve outlined above are the most significant for the outcome of this case. I’m always a pessimist when it comes to court decisions. But this is a once-in-a-lifetime chance to rectify a historic injustice. We should all pray for wisdom and prudence for our Supreme Court, and that they may finally do justice for the unborn.

Published by Ed Mechmann

I am a life-long New Yorker, a graduate of Columbia College and Harvard Law School, and a former state and federal prosecutor. I am currently the Director of Public Policy and the Director of Safe Environment at the Archdiocese of New York. All opinions here are mine, and mine alone, and do not represent official statements of the Archdiocese. All Glory to God.

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