Guest author Bill from White Plains takes a close look at a U.S. Supreme Court case that is a perennial issue in presidential campaigns. You can read earlier posts in his series on the Supreme Court here. -promoted by desmoinesdem
“Abortion? I personally don’t think abortion is that important. I think it’s just an issue to evade whatever issues are makin’ people drink about abortion.” Bob Dylan, 2016 winner of the Nobel Prize for Literature, speaking to Rolling Stone in 1986
You wouldn’t know it if you listened to the second and final 2016 Presidential debates, abortion isn’t even in the top 10 of the most important Presidential election issues this year. According to the Pew Research Center’s survey results from the week, June 15-26, 2016, abortion comes in at #13 of the 14 most important issues, trailing, among others, gun policy (#5), immigration (#6), Social Security (#7), trade policy (#11) and the environment (#12). Likewise, what one might expect as a hot-button issue – marriage equality – is last on the list (#14), meaning (according to Pew, anyhow) that only 40% of potential voters believe this is a “very important” issue.
Of course, in that same poll, Supreme Court Justices come in at #9, meaning that 65% of those surveyed believe appointments to the most influential court in America, and elsewhere, are “very important.”
But the issue was brought to the forefront at the debates, anyhow.
Republican Businessman Donald John Trump is a moving target on the issue. A video clip from Meet the Press on October 24, 1999 (back when it had a host with gravitas, Tim Russert) shows Mr. Trump responding to a question about partial birth abortion, in the third trimester, as follows:
Look, I’m very pro-choice. I hate the concept of abortion. I hate it. I hate everything it stands for. I cringe when I listen to people debating the subject. But you still, I just believe in choice. And again, it may be a little bit of a New York background, because there is some different attitude in different parts of the country and, you know, I was raised in New York and grew up and worked and everything else in New York City. But I am strongly for choice and yet I hate the concept of abortion.
That Meet the Press interview was conducted during the lame duck session of Bill Clinton’s presidency when, as he had in the past, then-private citizen Trump was toying with the idea of running for President someday. When asked that day, specifically, whether he would ban abortion if he was President of the United States, or at least partial-birth abortion, Mr. Trump said, “I am pro-choice in every respect.”
Seventeen years later, Republican Nominee Trump said, “I am pro-life and I will appoint pro-life judges.” With so-called, “pro-life judges,” Mr. Trump said the matter of abortion regulation “will go back to the states[]” because “if we put another two or perhaps three justices on [the United States Supreme Court],” Roe v. Wade, the United States Supreme Court case legalizing abortion “will [not might, not should, but will] happen. That will happen automatically, in my opinion, because I am putting pro-life justices on the court.”
In reply, Democratic Presidential Nominee, and former Secretary of State, Hillary Rodham Clinton, said she supported Roe v. Wade, which she described as “guarantee[ing] a constitutional right to a woman to make the most intimate, the most difficult in many cases decisions about her health care that one can imagine.”
Secretary Clinton pointed out that several states have enacted laws restricting access to abortion services. She noted several efforts to defund Planned Parenthood at the Federal level. Secretary Clinton summarized her observations, saying, “We have come too far to have that turned back now.” And she added that so-called, “late-term abortions” are legal under Roe v. Wade, and that, in her view, restrictions on late-terms abortions are appropriate and reasonable so long as “the life and the health of the mother taken into account.”
Mr. Trump, in perhaps his most practiced and polished of remarks, responded that, “If you go with what Hillary is saying, in the ninth month, you can take the baby and rip the baby out of the womb of the mother just prior to the birth of the baby. Now, you can say that that’s okay and Hillary can say that that’s okay, but it’s not okay with me.”
Roe v. Wade was decided in 1973. It was a capstone to a dozen or so prior Federal cases regarding abortion and contraception. The cases began at least 20 years earlier regarding access to birth control devices and medications. Many of those early cases involved a gynecologist and professor at Yale University, Charles Lee Buxton. Dr. Buxton would disobey anti-contraception laws, including laws on disseminating information about birth control (so-called, “Comstock laws,” which prohibited distribution of pornography, defining the term, “pornography” so broadly that it included health information) and pay the fines, so that he could then sue to have the law declared unconstitutional.
The time was ripe for such a challenge. By the time her lawsuit was filed, the United States Supreme Court had already heard a series of civil rights cases that established certain Constitutional rights that were not explicitly stated in the United States Constitution, but had been assumed, like, a freedom not to provide the government with membership lists of organizations like the National Association for the Advancement of Colored People (NAACP) based upon the “free association” clause of the First Amendment. (“Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”).
In Griswold v. Connecticut, a 1965 United States Supreme Court case, seven of the nine justices held that, while the Constitution does not explicitly lay out all of the rights a person has pursuant to it; it does create principles from which rights can be implied. The court called these implied rights, “penumbras.” Justice William Orville Justice (appointed by Franklin Delano Roosevelt in 1939, who would go on to become the longest-serving Supreme Court Justice by the time he retired in 1975), wrote the majority opinion in Griswold. Citing, among others, one of Dr. Buxton’s cases, Poe v. Ullman (1961)(regarding Connecticut’s law prohibiting the use of birth control contraceptives), the Griswold court held that “The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. . . Various guarantees create zones of privacy.”
In a compelling dissent, Justice Hugo Lafayette Black (another appointee of Franklin Delano Roosevelt’s, and a former member of the Ku Klux Klan), criticized this analysis of the United States Constitution. He wrote that, “The Court talks about a constitutional ‘right of privacy’ as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the ‘privacy’ of individuals. But there is not.”
He went on: “One of the most effective ways of diluting or expanding a constitutionally guaranteed right is to substitute for the crucial word or words of a constitutional guarantee another word or words, more or less flexible and more or less restricted in meaning. . . . I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision. For these reasons I cannot agree with the Court’s judgment and the reasons it gives for holding this Connecticut law unconstitutional.” Emphasis added.
With this backdrop, the Supreme Court agreed to hear Roe v. Wade.
“Roe,” or “Jane Roe,” was the pseudonym for plaintiff, Norma Leah McCorvey, a 21 year old pregnant woman whose two prior children by different fathers had been legally removed from her care. “Roe” tried to get an abortion in Texas, where abortions were illegal except in cases of rape. They were illegal, not unlawful; an abortion was a criminal act, punishable by jail or prison time, not a civil fine.
“Roe” lied about being raped in order to get an abortion, but was denied one. She was made aware there were Texas attorneys seeking a pregnant woman for a “test case;” a case with an actual plaintiff that would force a Federal court to rule on the constitutionality of the state’s anti-abortion law. So she contacted them and they filed a suit for “declaratory and injunctive relief:” a suit asking the court to declare the law unconstitutional and to order the state to cease enforcing it. Defendant Wade was Henry Wade, the county attorney, whose job it was to uphold the Texas law and prosecute those who disobeyed it.
There was a companion case out of Georgia, Doe v. Bolton, in which another woman was given a pseudonym (“Doe”). The defendant there was the Attorney General for the whole of the State of Georgia. The law in Georgia was actually narrower than that in Texas, but it still restricted abortions.
Perhaps it is of no significance, but I find it interesting anyhow, that the oral arguments in the case set the paternalistic tone of the proceedings. Texas and Georgia were represented by a male attorney; “Roe’s and Doe’s” attorneys were two young females. According to the transcript, the male attorney began with the obligatory statement, “Mr. Chief Justice, and may it please the court,” and then continued with a remark that went over like the metaphorical fart in church: “It’s an old joke,” he said. “But when a man argues against two beautiful ladies like this, they are going to have the last word.”
In any event, in its ruling, the United States Supreme Court presented the issue as follows: “The principal thrust of appellant’s attack on the Texas statutes is that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy. Appellant would discover this right in the concept of personal ‘liberty’ embodied in the Fourteenth Amendment’s Due Process Clause; or in personal marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras . . . , or among those rights reserved to the people by the Ninth Amendment.” Emphasis added.
In its analysis, the court examined the history of abortion laws in Great Britain and elsewhere, and the fact the procedure was for centuries a dangerous one. It noted the procedure was, by 1973, not only relatively, but genuinely, safe in the first trimester of pregnancy. From a legal standpoint, the court clearly stated that “The Constitution does not explicitly mention any right of privacy.” Emphasis added.
Nonetheless, it then broke the dam wide open with an extended analysis of all of the previous cases that found an overall “penumbra” of privacy rights in an host of different contexts:
[T]he Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment []; in the Fourth and Fifth Amendments []; in the penumbras of the Bill of Rights [], in the Ninth Amendment []; or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment []. These decisions make it clear that only personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty,’ [], are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, []; procreation, []; contraception, []; family relationships, []; and child rearing and education, [].
This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.
That is Roe v. Wade.
The ruling has been attacked as “bad law” ever since. Why?
It is important to understand how legal analysis works. Unlike the modern-day concept that judges are “activist” because they “make laws,” the fact is that judges rule based upon “precedents” – decisions from the Supreme Court (and elsewhere) that came before or, reasoning used in prior cases. There is a term for using precedent: “Stare decisis,” which means, “to stand by things [already] decided.” Stare decisis, simply stated, prevents judges from just pulling a result out of their backsides.
So, the intellectual, academic argument against Roe v. Wade goes, Roe may have used stare decisis; it may have cited numerous case precedents for support. Nonetheless, the precedents were unconvincing because the United States Constitution – outside of the Fourth Amendment regarding criminal searches and seizures – simply does not talk about a right of “privacy;” it isn’t there. So, this concept of recognizing “penumbras” of privacy in the Fourteenth Amendment – which forces Federal law on the states in certain situations – is an abuse of judicial power. Therefore, not only Roe v. Wade, but Griswold v. Connecticut and all the other cases where privacy is interpreted but not explicitly provided for in the Constitution, are not based on stare decisis, but on wrong-headed legal analysis masking as stare decisis.
The problem with making that argument post-1973, though, is that numerous cases since then involving contraception generally and abortion specifically, have – by virtue of their being decided with reference to Roe v. Wade – created a bounty of case precedents in and of themselves. So, now, Roe v. Wade is, as a result, stare decisis. Stated somewhat differently, from a legal standpoint, the only way to overturn Roe v. Wade, which was decided based on volumes of case precedents, as well as medical history, is for a judge, in the 21st Century, to ignore stare decisis, pull a result out of his or her butthole, and be the activist judge that abortion foes complain about.
Justice Scalia, whose seat on the bench will eventually be filled by somebody appointed by Hillary Clinton – probably not District of Columbia Circuit Court Judge Merrick Brian Garland – was willing and able to be that activist judge.
And, though most voters do not comprehend it, and most politicians (including, I speculate, Republican Nominee Trump) do not appreciate it but, this fear about “overturning Roe v. Wade” stems from a 1989 dissent by Justice Scalia who, at that point, had only been a Supreme Court Justice for three years. To give you some idea of how long ago that was, in 1989, I had just moved to Iowa to begin attending law school. Now, classmates of mine are retiring. In all of those years, Roe v. Wade hasn’t been overturned.
The 1989 case was Webster v. Reproductive Health Services, Inc.. Plaintiff Webster was the Missouri attorney general. The defendants, Reproductive Health Services, Inc., and others, were health care providers that offered abortion services in Missouri.
The Supreme Court ruling was a “plurality opinion,” which, in lawyers’ terms, means, “a mess.” There was an opinion written, but various justices who agreed with it probably agreed on the result, but several of them disagreed on a whole lot of other things in that “main” opinion.
The casual reader of an United States Supreme Court opinion may well wonder why rulings are broken down into Roman numeral, letter, number, then small Roman numeral and letter again, etc. One reason is to separate out various thoughts the author has along the way. In a plurality opinion, there is one author, but then there are several “concurring opinions,” that say something like, “I agree in the result, but I disagree with sections IV(A)(1)(vi), VI(C)(4)(i) and X(B)(7)(iii).”
In order to know exactly what a majority of the justices agreed to, the lawyer has to read the opinion and every concurrence, and chart out the majority result. That effort is not for the casual reader. Indeed, most lawyers lack the comprehension skills to ferret out the one or two things upon which a majority agreed.
I point this out not as a “fun fact,” but as some basis for why, nearly 30 years later, politicians and voters who don’t know what they’re talking about – as well as those who do – continue to worry about “overturning Roe v. Wade.” The reason is not Roe v. Wade; instead it is Webster v. Reproductive Health Services, Inc., because it calls something about Roe into question and, what that “something” is, involves too much thinking to know for sure.
Webster involved a Missouri law that restricted abortion services. Specifically, it restricted abortions of any live fertilized human egg more than 20 weeks after fertilization, and it required time-consuming, duplicative procedures to determine gestational age and it only allowed abortions necessary to save the mother’s life but, prohibited the dissemination of information to women regarding abortions necessary to save their
lives.
The case was initially brought as a class action including medical providers, their corporations, pregnant women and women of child-bearing years for declaratory and injunctive relief. It argued “penumbras of privacy” and “rights” to abortion services and a variety of other arguments, some of which had precedent.
In short, both the state of Missouri and its opponents threw everything up against the wall in a game of legal “chicken;” a direct challenge to Roe v. Wade. And the court blinked. It didn’t overrule Roe, but the various concurring opinions made clear that the justices didn’t agree with Roe either.
Justice Scalia filed a concurring opinion in the case. He begins with this:
I join Parts I, II–A, II–B, and II–C of the opinion of the Court. As to Part II–D, I share Justice BLACKMUN’s view, [], that it effectively would overrule Roe v. Wade. . . .” I think that should be done, but would do it more explicitly. Since today we contrive to avoid doing it, and indeed to avoid almost any decision of national import, I need not set forth my reasons, some of which have been well recited in dissents of my colleagues in other cases.
He continues:
The outcome of today’s case will doubtless be heralded as a triumph of judicial statesmanship. It is not that, unless it is statesmanlike needlessly to prolong this Court’s self-awarded sovereignty over a field where it has little proper business since the answers to most of the cruel questions posed are political and not juridical—a sovereignty which therefore quite properly, but to the great damage of the Court, makes it the object of the sort of organized public pressure that political institutions in a democracy ought to receive.
Justice O’CONNOR’s assertion, ante, at 3061, that a “ ‘fundamental rule of judicial restraint’ ” requires us to avoid reconsidering Roe, cannot be taken seriously. By finessing Roe we do not, as she suggests,[], adhere to the strict and venerable rule that we should avoid
“‘decid[ing] questions of a constitutional nature.’ ” We have not disposed of this case on some statutory or procedural ground, but have decided, and could not avoid deciding, whether the Missouri statute meets the requirements of the United States Constitution. The only choice available is whether, in deciding that constitutional question, we should use Roe v. Wade as the benchmark, or something else. What is involved, therefore, is not the rule of avoiding constitutional issues where possible, but the quite separate principle that we will not “ ‘formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.’” [].
The latter is a sound general principle, but one often departed from when good reason exists.
Since that ruling, there have been several challenges to a variety of abortion restrictions in several states, and Roe v. Wade has never been overturned. With every abortion case that comes before the Supreme Court, abortion rights groups hold their breath and cross their knees in anticipation of the result: “Will this be the case that overrules Roe v. Wade?”
The answer, at this point, is academic: it isn’t, and Roe won’t be. The reason is clear: stare decisis. Well, it is academic but, that doesn’t mean Mr. Trump knows that. During the debate, when asked whether he would like to see Roe v. Wade overturned, Mr. Trump replied, “Well, if we put another two, or perhaps three [new Supreme Court] justices on [the Court], that’s really going to be, that’s, that will happen. That will happen automatically, in my opinion because I am putting pro-life justices on the court.”