Legal Issue: Are the individual states Constitutionally prohibited from restricting a woman’s access to abortion by the Due Process Clause of the Fourteenth Amendment, as the Court contended in Roe v. Wade and subsequent cases, or is abortion an issue which is Constitutionally a sovereign province of the states?
Facts/History: In his opinion for the Court in the case of Roe v. Wade, Justice Harry Blackmun wrote that any "state criminal abortion statute...that excepts from criminality only a life-saving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment." Roe v. Wade, 410 U.S. 113 (1973) [Italics in Original]. That decision was upheld nineteen years later in Planned Parenthood of Southeastern Pennsylvania v. Casey. There, in the plurality opinion of Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter, the Court held that "the essential holding of Roe v. Wade should be retained and once again reaffirmed," recognizing "the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State." Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). That precedent remains the law of the land today.
Analysis: My cursory examination of the Constitution has demonstrated that the Court’s assertion in Roe—that state statutes proscribing abortion pre-viability are "violative of the Due Process Clause of the Fourteenth Amendment." Roe v. Wade, 410 U.S. 113 (1973)—contradicts the text, meaning, and history of the Due Process Clause of the Fourteenth Amendment and the Constitution in general. As Justice Clarence Thomas has written, "the Court’s abortion jurisprudence, including Casey and Roe v. Wade [citation omitted], has no basis in the Constitution." Gonzales v. Carhart, No.05-380, Slip op. at 47 (2007)(THOMAS, J., concurring).
The Constitution creates a national government of limited and enumerated powers. Art. I, §8 of the Constitution enumerates those powers of the Congress and the national government, including a power to "borrow money on the credit of the United States;"U.S. Const. art. I, §8, cl. 2, to "regulate Commerce...among the several States;" U.S. Const. art. I, §8, cl.3, to "constitute Tribunals inferior to the supreme Court;" U.S. Const. art. I, §8, cl. 9, to "provide and maintain a Navy;" U.S. Const. art. I, §8, cl. 13, etc. Nowhere in Art. I, §8 is the power to regulate abortion granted. Abortion is not addressed nor contemplated by the Constitution.
In a system of enumerated powers, this is dispositive. With a governmental system so constituted, the government cannot exercise powers beyond those given to it or which are inferred from those powers. Such is only logical. As Chief Justice John Marshall wrote in his opinion for the Court in Marbury v. Madison, "To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?" Marbury v. Madison, I Cr. (5 U.S.) 137 (1803).
If the power is not enumerated as belonging to the national government in the Constitution, then the national government cannot exercise it, and the Supreme Court certainly cannot prevent the states from exercising it. James Madison wrote in the Federalist that the "powers delegated by the...Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite." He continues: "The powers reserved to the several States will extend to all objects which, in the ordinary course of affairs; concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State." The Federalist No. 46 (James Madison).
The Constitution codifies this sentiment in the Tenth Amendment. It states that, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Quoting Akhil Reed Amar, Professor of Law at Yale University, the Tenth Amendment reaffirmed "that the central government would wield only limited powers." Akhil Reed Amar, America’s Constitution: A Biography 327 (2005). Attorney and former head of the Justice Department’s Office of Legal Counsel Charles Cooper echoes this sentiment, observing that the Tenth Amendment serves to stifle the supposition that there "were powers in the national government that were not granted by the original document." Charles Cooper, Reserved Powers of the States, in The Heritage Guide to the Constitution 371 (Edwin Meese, ed., 2005).
Former circuit court judge and Supreme Court nominee Robert Bork has written that since "the beginning of the Republic until [Roe], the moral question of what abortion should be lawful had been left entirely to the state legislatures." Robert H. Bork, The Tempting of America 112 (1990). As Justice Blackmun himself documented in his opinion in Roe, there is a history of states regulating abortion free of federal interference as far back as 1821. Further, he even makes a surprising assertion which entirely contradicts the Court’s claim that a state abortion statute criminalizing abortion prior to viability with only an exception for the life of the mother violates the Due Process Clause. He states that in "1840...eight American States had statutes dealing with abortion. It was not until after the War Between the States that legislation began generally to replace the common law." Roe v. Wade, 410 U.S. 113 (1973). In other words, states started to generally enact their own regulations and restrictions regarding abortion within the same time period that the Fourteenth Amendment and its Due Process Clause were ratified in 1868.
This, if nothing else, refutes Justice Blackmun’s and the Court’s claim that state laws restricting abortion violate the Fourteenth Amendment. If the Due Process Clause of the Fourteenth Amendment had been understood to proscribe state restriction of abortion, as claimed by the Roe Court, there would not have been the proliferation of such laws being passed in that exact same time period it was ratified.
It is readily apparent that the Court’s ruling in Roe has no basis in the Constitution, and is instead "an exercise of raw judicial power," as Justice Byron White described the Court’s opinion in his dissent in Roe. Roe v. Wade, 410 U.S. 113 (1973) (WHITE, J., dissenting).
There is wide, across the spectrum consensus on this point, among liberals and conservatives, pro-choice and pro-life. Justice Antonin Scalia, considered one, if not the most conservative justices currently on the Court, has written that Roe is mistaken because "(1) the Constitution says absolutely nothing about [abortion], and (2) the long-standing traditions of American society have permitted it to be legally proscribed." Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) (SCALIA, J., concurring in the judgment in part and dissenting in part).
From the other side, Harvard Professor of Law Laurence Tribe has written that, "One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found." Laurence Tribe, The Supreme Court, 1972 Term—Foreword: Toward a Model of Roles in the Due Process of Life and Law, 87 Harv. L. Rev. 1, 7 (1973). Or, as then Yale Professor of Law John Hart Ely wrote, "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." John Hart Ely, The Wages of Crying Wolf, 82 Yale L.J. 920, 935-36 (1973). Echoing Judge Bork once again, "the decision [in Roe] was the assumption of illegitimate judicial power and a usurpation of the democratic authority of the American people." Robert H. Bork, The Tempting of America 116 (1990).
An examination of the private papers of a few of the justices of the Roe majority only further confirms the assertion that the Court had not reached a constitutional decision, but had crafted a novel, illegitimate piece of legislation. In a Court memo, Justice Blackmun, the author of the decision in Roe, conceded that he was constructing "arbitrary" lines defining when a woman was entitled to an abortion and when the state had an interest in restricting that right. Justice Potter Stewart, in a subsequent memo, conceded the construction of these lines was an activity "legislative" in nature. As Washington Post reporter Bob Woodward of Watergate fame writes, "[Justice] Blackmun tried hard to find a clear legal argument. He searched through the common law, the precedents, medical books and the positions of various medical organizations looking for guidance. There were no clear legal or scientific guideposts, so he drafted his opinion more on the basis of logic, medical knowledge, perceived social necessity and the assembled convictions of his colleagues." Bob Woodward, The Abortion Papers, Wash. Post, Jan. 22, 1989, at d. 01.
Essentially, Justice Blackmun found justification for the Court’s ruling in many places, the Constitution itself not being one of them. In an appalling instance of honesty, the Dean of the University of Chicago Law School Geoffrey Stone, who served as a law clerk to Justice William J. Brennan Jr. at the time Roe was decided, admitted that, "Everyone in the Supreme Court, all the justices, all the law clerks knew it was ‘legislative’ or ‘arbitrary.’" Bob Woodward, The Abortion Papers, Wash. Post, Jan. 22, 1989, at d. 01. The Court’s decision in Roe, privately admitted in these internal memos, was based upon nothing more than the personal predilections of the justices themselves.
Unsurprisingly, those who do mount a defense of Roe do not seem to do so on the merits of the decision, but on the simple grounds of stare decisis. In Planned Parenthood of Southeastern Pennsylvania v. Casey, the plurality simply held that upon "principles of institutional integrity, and the rule of stare decisis, we are led to conclude this: the essential holding of Roe v. Wade should be retained and once again reaffirmed." The plurality then goes on to explain that overturning Roe "would not only reach an unjustifiable result under principles of stare decisis, but would seriously weaken the Court’s capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law." Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).
But this logic is sophistic. As the plurality acknowledges, the Court has overruled its own precedent many times before, in cases such West Coast Hotel Co. V. Parrish, 300 U.S. 379 (1937) (overruling Lochner v. New York, 198 U.S. 45 [1905] and Adkins v. Children’s Hospital of D.C., 261 U.S. 525 [1923]); Brown v. Board of Education, 347 U.S. 483 (1954) (overruling Plessy v. Ferguson, 163 U.S. 537 [1896]); and more recently Lawrence v. Texas, 539 U.S. 558 (2003) (overruling Bowers v. Hardwick, 478 U.S. 186 [1986]), just to name a few.
When the Court has found a previous case to be wrongly decided it has not been afraid to say so and overrule it. In Casey, the plurality does not address the merits, or lack thereof, of the Court’s decision in Roe, instead simply declaring that its precedent should be left intact on that basis alone, regardless of whether it was or was not correctly decided. As Justice Scalia wrote in dissent, "The authors of the joint opinion...do not squarely contend that Roe v. Wade was a correct application of ‘reasoned judgment’; merely that it must be followed, because of stare decisis." Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1993)(SCALIA, J., concurring in the judgment in part and dissenting in part) [Italics in Original].
Beyond that, the plurality’s fear of a loss of legitimacy for the Court if it overruled Roe is completely off base. The more logical assertion seems to be that the Court’s rigid adherence to a precedent created in a case that nearly everyone recognizes as wrongly decided damages the Court’s legitimacy and its commitment to the rule of law. Quoting Justice Scalia’s Casey dissent once more, "Surely, if ‘[t]he Court’s power lies...in its legitimacy, a product of substance and perception,’ the ‘substance’ part of the equation demands that plain error be acknowledged and eliminated." Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1993) (SCALIA, J., concurring in the judgment in part and dissenting in part).
Roe’s transgressions extend beyond issues of Constitutional law however. They are found also in the deleterious effects it has had on the American political process and the federal judiciary itself. The Court’s decision in Roe has produced an unyielding agitation within the political process in America and a poisoned sense of partisanship. This is because federalism—the principle that the federal government exercises some powers and the states exercise the rest—was taken out of the abortion equation. This is unfortunate because the framers had a logic behind this system. As David Gelernter has pointed out, "federalism accommodates profound national disagreement by allowing each state to tailor the local climate to suit itself. Federalism is an escape valve that lets polarizing bitterness blow off into the stratosphere." David Gelernter, Back to Federalism: The Proper Remedy for Polarization, The Weekly Standard, April 10, 2006, at 22. Prior to Roe, the disparate peoples of conservative states like Idaho or South Dakota did not have to accept the predilections of the peoples of liberal states like Vermont and Rhode Island towards abortion and vice-versa.
Not so anymore, and unsurprisingly there is a large degree of national agitation over the issue when there should not be. As William Kristol points out, "Abortion is today the bloody crossroads of American politics." William Kristol, On the Future of Conservatism, Commentary, February 1997, at 14. John Micklethwait and Adrian Woolridge point out that abortion has been legalized in many other countries as well but in none is it as controversial as it is here. The reason is that "European countries liberalized abortion through legislation and, occasionally, referenda. This gave legalization the legitimacy of majority support, and allowed countries to hedge the practice with all sorts of qualifications. In America, the Supreme Court...decided that reproductive rights are included in a fundamental right to privacy which, rather like freedom of speech and freedom of religion, is guaranteed by the Constitution". John Micklethwait & Andrew Woolridge, Right Nation: Conservative Power in America 309 (2004).
As many commentators point out, Roe has had a negative effect on the pro-choice movement and cause too. Current Associate Justice Ruth Bader Ginsburg has opined that Roe might have discouraged, not empowered, pro-choice legislative developments within the United States. "The sweep and detail of the opinion stimulated the mobilization of a pro-life movement and an attendant reaction in Congress and state legislatures." Ruth Bader Ginsburg, Some Thoughts on Autonomy And Equality in Relation to Roe v. Wade, 63 N.C.L. Rev. 375, 381-82 (1985). Author and legal commentator Jeffrey Rosen has echoed that sentiment. As a result of Roe, "the pro-choice majority asks nominees to swear allegiance to the decision without being able to identify an intelligible principle to support it. And the pro-life minority can criticize the legal weakness of the decision without having to acknowledge its political weakness in the country as a whole." Jeffrey Rosen, Worst Choice: Why We’d Be Better Off Without Roe, The New Republic, Feb. 24, 2003, at 15.
The greatest victim of Roe has been the federal judiciary itself. As Mr. Gelernter pointed out, "the Court never used to be important as it is today...Previous generations rarely saw bitter, polarizing fights over Court nominations, not merely because the nation was less polarized; because the Court itself was less important." David Gelernter, Back to Federalism: The Proper Remedy for Polarization, The Weekly Standard, April 10, 2006, at 22, 24. Quoting Justice Scalia’s dissent in Casey one last time, "Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court, in particular, ever since." He concludes ominously in declaring that "by foreclosing all democratic outlet for the deep passions this issue arouses...the Court merely prolongs and intensifies the anguish." Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1993)(SCALIA, J., concurring in the judgment in part and dissenting in part).
Conclusion: Roe v. Wade was wrongly decided. The Constitution does not mention nor address abortion, and thus it is an issue belonging to the States. Roe has also had a deleterious effect on the national political process and the federal judiciary. It ought to be overturned.
