Reflections on Dobbs, part 1: creating and overturning precedents

I was in my final year of high school when the United States Supreme Court handed down its controversial Roe v Wade decision, declaring a constitutional right to abortion and unifying the abortion licence across the country. To understand the significance of that decision, we need to recall that, unlike Canada which has a single Criminal Code applicable to the entire country, the Constitution of the United States reserves most of the criminal law to the individual states under the 10th Amendment. This is why, for example, the death penalty is still practised in some states and not in others. Prior to 22 January 1973, the legal status of abortion varied amongst the several states, with some being more permissive than others. After that date, the states were obligated to recognize a woman's right to abortion according to a trimester framework. In the first trimester, a woman's right to abortion was absolute. In the second, the state might regulate but not prohibit abortion. In the third, after the foetus was assumed to be viable, the state could prohibit abortion except in cases where the mother's health is at risk.

Roe was decided based on a right to privacy the court claimed to find in the due process clause of the 14th Amendment, citing as precedent the Court's decision in Griswold v Connecticut (1965). There was one problem, however. The due process clause reads:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws (section 1).

Nowhere in this sentence is abortion mentioned, nor is a right to privacy. It is highly unlikely that the framers of this amendment in 1868 envisioned that it would guarantee a right to abortion. Adopted three years after the abolition of slavery, it was intended to ensure that all citizens, including those recently released from bondage, should enjoy equal protection of the laws. To use the due process clause as the Court did in Roe made the decision controversial from the outset.

Writing a few years later, Archibald Cox treated the case in his short book, The Role of the Supreme Court in American Government (Oxford University Press, 1976), which I read during my first year of graduate school. In it he commented on the significance of Roe for the role of the Court in the larger political system:

First, the decisions plainly continue the activist, reforming trend of the [Earl] Warren Court. They are 'reforming' in the sense that they sweep away established law supported by the moral themes dominant in American life for more than a century in favour of what the Court takes to be the wiser view of a question under active public debate.

Second, the Justices read into the generalities of the Due Process Clause of the Fourteenth Amendment a new 'fundamental right' not remotely suggested by the words. Because they found the right to be 'fundamental', the Justices felt no duty to defer to the value judgments of the people's elected representatives, current as well as past. They applied the strict standard of review applicable to repression of political liberties.

Third, three Justices in the seven-man majority were appointed by President Nixon as 'strict constructionists': Chief Justice Burger, Justice Blackman who wrote the opinion of the Court, and Justice Powell. Only one Nixon appointee dissented. . . . A court more concerned with the preservation of old substantive values than with articulation of a new spirit will find fewer occasions for rendering activist decisions. Still, the abortion cases strongly suggest that the new Justices are not restrained by a modest conception of the judicial function but will be activists when a statute offends their policy preferences (53-54).

Many legal scholars who had no policy preferences with respect to abortion believed that the Court had wrongly decided Roe, bending the Constitution to achieve a desired outcome, thus bypassing the representative institutions properly at the centre of the policy process. This put the legitimacy of Roe in doubt for two generations amongst a substantial segment of the American public.

Yet there was another issue which the Court simply ignored in its ruling but which Cox raised in his own treatment:

Oddly, but possibly because counsel did not stress the point, the opinion fails even to consider what I would suppose to be the most compelling interest of the State in prohibiting abortion: the interest in maintaining that respect for the paramount sanctity of human life which has always been at the centre of western civilization, not merely by guarding 'life' itself, however, defined, but by safeguarding the penumbra, whether at the beginning, through some overwhelming disability of mind or body, or at death [emphasis mine] (53).

By the late 1970s a pro-life movement was gaining momentum, with proponents arguing that the foetus in the womb has a right to life that ought to be protected by the law. Early pro-life activists were largely Roman Catholic, but they were joined by evangelical protestants later in the 1970s, persuaded to come onside by, among other factors, Francis Schaeffer and C. Everett Koop's film series and accompanying volume, Whatever Happened to the Human Race? The long-range goal of the movement was to overturn Roe v Wade, and the means to this end was to influence the choice of justices by the president. Of course, presidential nominations can backfire for a sitting president, as appointees often decide particular cases in unanticipated ways. A president may think he is nominating a justice who will narrowly interpret the Constitution but who then proceeds to take the Court in a more activist direction.

As a long-range goal, overturning Roe was not without problems, two of which I will mention here.

First, once Roe had been decided, it became a precedent binding on future courts. A central legal principle in those jurisdictions influenced by the English Common Law is stare decisis, or stand on what is decided. This has made the courts in English-speaking countries reluctant to overturn their own previous decisions or to depart from them in a fundamental way. A rare example of such an exception is the Supreme Court's famous 1954 decision in Brown v the Board of Education of Topeka, Kansas, which overturned the Court's previous 1896 ruling in Plessy v Ferguson, which had upheld racial segregation of schools. If a court reverses itself too easily, it erodes its own standing in the larger polity as citizens come to regard it as less than fully impartial and too subject to the shifting whims of the justices themselves. This risks bringing the rule of law itself into doubt.

Second, a law that does not enjoy a popular consensus in its favour may not fully satisfy the characteristics of a law. Many jurisdictions have laws on the books that are effectively dead letters, with officials unwilling or unable to enforce them and the general public content to flout them. In this respect, a reversal of Roe in the absence of a supportive popular consensus will not necessarily keep women from obtaining abortions. The protection of the rights of the unborn depends not just on what is in the law books but on the law living in people's hearts. If a substantial portion of the public is not persuaded that the life of the child in the womb is worth defending, then today's victory may turn out to be an empty one at best. Pro-lifers should not assume that Roe's reversal means they can lay aside their efforts at building a pro-life consensus.

Nor does today's decision mean that the decades-long battle over abortion is over. There are many organizations heavily invested in protecting and advancing the abortion licence, including Planned Parenthood and NARAL Pro-Choice America. It would be foolish to expect them to put their cards away and go home now that they've apparently lost the game. While pro-lifers, flush with victory in the courts, may be loath to admit it, the abortion issue will not be settled if they do not recognize the legitimate concerns of their opponents and the fears that are driving them. Likewise, pro-choicers will need to be persuaded that the life of the child is a significant factor to be accounted for in the ongoing conversation.

For both sides, ascribing malice and ill will to their adversaries will only deepen the divisions in the larger society. Now is the time to seek healing and to bring the two sides together to discuss where to go from here. The process will not be an easy one, and I fear that both sides will be tempted to resort to ad hominem attacks and charges of bad faith. But it is worth the attempt.

Next: Reflections on Dobbs, part 2: 'rights talk' and partisan polarization