Michael Stokes Paulsen
mercatornet.com
Michael Stokes Paulsen is Distinguished University Chair & Professor of Law, at the University of St. Thomas, in Minneapolis.
For the first time in a generation and a half — nearly 30 years — there is a realistic chance that the Supreme Court might overrule Roe v. Wade, the Court’s 1973 decision establishing a constitutional right to abortion. The Court has agreed to hear a case next fall that presents a direct challenge to the foundations and validity of Roe.
This is a signal moment in America’s constitutional history. One of the most notorious decisions in the Court’s history is likely either to be repudiated and overruled — discarded, finally and definitively — or else reaffirmed and entrenched, perhaps permanently. The case is Dobbs v. Jackson Women’s Health Organization. And the stakes could not possibly be higher.
My discussion of Dobbs proceeds in two parts. In this article, I explain why Dobbs is the most important abortion case to reach the Court in nearly thirty years — since Planned Parenthood v. Casey (1992), the case in which a splintered Court, by the narrowest of 5-4 margins, reaffirmed Roe, not because a majority of the justices thought Roe was right, but on the basis of the judicial doctrine of “stare decisis.”
Dobbs is important because it frames a direct challenge to Roe and Casey, forcing the Court to confront the legal indefensibility and radicalism of the Court’s pro-abortion jurisprudence. Dobbs poses the enormously important question whether Roe and Casey, two of the worst constitutional decisions of all time, were wrongly decided and should now, finally, be overruled. On the merits, I submit, the answer must be yes.
Later on, I will take up the somewhat peculiar-sounding question whether the judicial doctrine of “stare decisis” — the (inconsistent) judicial practice of generally adhering to precedents — can properly require the Court deliberately to reaffirm precedents that it is persuaded are egregiously and atrociously wrong. That, I maintain today, is the only true question remaining at issue in Dobbs. And the answer is emphatically no.
Roe’s Wrongness
Start with Roe v. Wade. Roe is regarded, rightly, as one of the most consequential and controversial — and one of the very worst — constitutional decisions of the Supreme Court in its history.
In simplest terms, Roe created a constitutional right to abortion of the life of a living human fetus. That result, and Roe’s reasoning in support of it, are indefensible from a legal standpoint. No plausible argument from the constitutional text, no rule or principle fairly derived from its structure or internal logic or deducible from other propositions contained therein, and no credible argument from historical understanding or intention remotely supports the abortion right created in Roe.
Roe v. Wade is simply a lawless decision. I know of no serious constitutional scholar who defends Roe’s result as a faithful interpretation of the Constitution’s language, understood according to its natural and original meaning, as understood at the time of its adoption, or as consistent with the original intent of its adopters in 1868.
To be sure, a small cottage industry of legal academics has grown up around the enterprise of attempting to concoct “alternative” legal theories to support the result in Roe. These theories range from the merely strained and historically insupportable — the claim that abortion restrictions constitute sex discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment is the most common — to the comically absurd and outlandish.
The latter include wild assertions that abortion laws violate the Constitution’s prohibition of slavery or interfere with the guarantee to women of the right to vote. (I address and refute these theories in a book chapter of a volume collecting many of the most “creative” such contrivances, and also in an academic article.)
The Court has never adopted any of these alternative theories for abortion as a constitutional right. Nor has it come anywhere close to doing so. Instead, it has left the right to abortion where Roe purported to find it, in the guarantee that government not deprive persons of life, liberty, or property “without due process of law.”
That’s the same bogus legal reasoning on which the Supreme Court had rested its infamous Dred Scott decision in 1857, holding unconstitutional Congress’s law prohibiting the introduction of slavery into federal territories. This reasoning, if one can call it that, goes by the oxymoronic label “substantive due process.” It is gibberish, as most sensible people recognize.
In Casey, the Court, while nominally reaffirming Roe’s substantive due process holding, could not bring itself actually to embrace Roe’s reasoning as correct. Indeed, a majority of justices seemed to indicate they believed that the case was wrongly decided. Casey left Roe in place almost purely on the basis of the doctrine of stare decisis. In other words, the justices concluded the Court should stick to Roe “whether or not mistaken,” simply because it was a precedent on which the Court had staked its authority, and it might look bad if it were to reverse itself.
In tomorrow’s essay, I will attack this craven, unprincipled reasoning. For now, my point is simpler: Roe is a relic of abandoned reasoning that almost no one — including the Court itself — any longer thinks correct on its own terms. If Roe retains any legitimacy at all, it is only because it is a precedent and for no reason moored to the text of the Constitution.
It is important to grasp this. Roe v. Wade’s rule no longer rests on any provision of the Constitution. It rests on Roe’s rule being Roe’s rule. The constitutional right to abortion has been cut loose from any tether to the Constitution’s text. It now depends, essentially entirely, on the force of Roe’s status as a precedent and the doctrine of stare decisis.
Roe’s indefensibility as a matter of faithful constitutional interpretation is, frankly, almost no longer a matter of serious dispute. The incorrectness of Roe as a matter of first principles is practically a point of common ground, certainly so for the principled constitutional conservatives that now compose the majority of the justices on the Court. Bluntly put: Roe is as wrong as wrong can be, and everybody knows it.
Roe’s Extremism and Its Human Consequences
Roe’s formulation of the abortion right is also quite extreme. In a nutshell, Roe established a constitutional right to abortion of a living human fetus for essentially any reason that a pregnant woman chooses. Under the Court’s decisions, the right to abort exists throughout all nine months of pregnancy, albeit in slightly varying forms depending on the stage of pregnancy.
Prior to fetal “viability” — that is, the point when the child could live outside his or her mother’s womb, now around twenty-four weeks — the right to abort is explicitly plenary. There is no ground on which states may prohibit an abortion from being obtained. This includes, as I have recently written, eugenic reasons — aborting an unborn child because of his or her race or sex, or on account of disability.
After viability, an abortion may be had for any “health” reason, but “health” is defined broadly (and misleadingly) to embrace emotional, psychological, age, or “familial” considerations. This loophole is big enough to make the right to abortion functionally absolute, even when the child could live outside the womb.
The Court’s opinions concerning “partial-birth” abortion, in 2000 and 2007, bear this out. They uphold a right to kill a fetus capable of living independently of the mother, under the rubric of the need to permit late abortions on “health” grounds. Thus, partial-birth abortion — the gruesome technique of inducing labour, delivering all of the body except the head, puncturing the skull and vacuuming out the child’s brain, collapsing the head, and then completing removal of the dead child — can be prohibited as an abortion method, even after viability, only if there is available some equally safe (to the pregnant woman) alternative method for killing the fetus.
The right to abortion is thus essentially absolute. This is especially clear for pre-viability abortions. State governments may adopt certain informed consent and waiting-period requirements, and they may enforce some (but not many) regulations of abortion clinics. But they may not prohibit abortion itself, for any reason, prior to viability.
Planned Parenthood v. Casey tinkered slightly with Roe’s framework but did not alter its essentials. It retained the absolute right to pre-viability abortion and it retained the “health” right to abortion of even viable unborn babies.
It is worth pausing briefly to reflect on just how radical the Roe–Casey abortion-rights legal construct is. It is no cautious “balance” of interests. It is almost unreservedly pro-abortion. It adopts one of the most extremely lenient pro-abortion legal regimes anywhere in the world. It fails to recognise any legal rights of the unborn human fetal children, in any respect, at any stage of pregnancy.
It does not recognise them as legal persons in their own right, entitled to the equal protection of the laws from private violence (a debatable but infinitely more plausible legal understanding of the common law and of the Constitution’s guarantees than is Roe’s creation of a constitutional right to abortion). Nor, short of that, does it recognise the unborn as members of the human species meriting protection by the state, whether or not they possess a constitutionally recognised legal “right to life” of their own. The living human fetus is treated, absurdly, as “potential life.”
In short, if Roe were an act of legislation, a bill passed by a legislature, it would be extremist pro-abortion legislation. And, not to put too fine a point on it, Roe is an act of legislation. (As is Casey — a modest, friendly amendment to Roe.) That Roe and Casey are acts of extremist legislation, adopted by a runaway judiciary, only makes matters worse.
The most important point about Roe’s extremism is, of course, its human toll. Roe’s practical and moral consequences have been truly stunning. Roe sanctioned, and Casey perpetuated, in the name of our fundamental law, the killing of over sixty million human beings.
This is not rhetorical overstatement but simple description. That abortion kills should not be a controversial proposition. There is no doubt that abortion results in the death of a distinct living being — an organism that was alive before is now dead. And there is no doubt that the living being killed by abortion is a human living being, distinct from the mother.
Abortion thus ends a human life. To be sure, it is a human life at an early and vulnerable stage in its development. But it is the same human life it will be at all stages of its life cycle, as an embryo, fetus, infant, child, and adult.
Roe created a right of some human beings to kill other human beings. It is important to be clear about that. Since Roe, the running human death toll from abortion in America has exceeded that of the Nazi Holocaust, Stalin’s purges, and the Rwandan genocide combined. Our familiarity with Roe has led to a strange acceptance of, or numbness to, its shocking, murderous radicalism and the scale of its havoc.
Roe is both a constitutional monstrosity and a moral atrocity. As I wrote in these pages nearly a decade ago, Roe is simply unbearably wrong. It is time — long past time — to overrule Roe v. Wade.
The Dobbs Case
That brings us to Dobbs v. Jackson Women’s Health Organization. The Dobbs case poses a direct, head-on challenge to Roe’s framework and, by necessary implication, its legitimacy. Here’s how: As noted, Roe and Casey hold that abortion cannot be banned for any reason before the point of fetal viability, when the child would be capable of living outside his or her mother’s womb, currently at about twenty-four weeks of pregnancy.
Dobbs involves a legal challenge to a Mississippi law forbidding abortions after fifteen weeks of pregnancy. This is more than two months before the point of viability. Simply put, if Roe is right, Mississippi’s law is “unconstitutional” (to accede, for purposes of argument, to an inaccurate characterisation). And conversely, for Mississippi’s law to be upheld, Roe and Casey must be rejected.
The Dobbs case thus squarely presents the issue of whether Roe v. Wade is wrong and should be overruled. Given what Roe and subsequent abortion decisions hold, and what the Mississippi law in question provides, the issue is practically unavoidable. And the Court’s order granting review shows no desire to avoid it. The legal question on which the justices granted review was stated as follows: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.” That’s another way of asking whether Roe v. Wade is rightly or wrongly decided and should remain the operative legal rule.
What will the Court do? A solid majority of justices now on the Supreme Court clearly believes that Roe is unequivocally wrongly decided, as flagrant a departure from constitutional text, structure, and history as any precedent in the Court’s history.
There is no doubt in my mind that six of the nine sitting justices firmly believe Roe is wrong. They are, in rough order of certainty: Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Amy Coney Barrett, Brett Kavanaugh, and Chief Justice John Roberts.
In truth, I believe Justice Elena Kagan in her heart of hearts is unpersuaded of Roe’s legal correctness, too. But she and fellow liberals Stephen Breyer and Sonia Sotomayor can be counted on to vote for unrestricted abortion rights no matter what.
The Stakes and Snare Of “Stare Decisis”
Everything — everything — thus depends on the Court’s treatment of the legal doctrine of “stare decisis.” “Stare decisis” is a fragment of the Latin phrase taken to stand for the general rule of practice and judicial policy, drawn from the common law, that courts tend to follow their own precedents unless they have a good and sufficient legal justification for departing from them.
Significantly, the doctrine has never been thought to be constitutionally required. It is a rule of judicial policy and usual practice only. Nor has the doctrine ever been thought absolute. There are literally hundreds of examples of cases that have been overruled. Even at common law, courts could overrule prior decisions demonstrated to be unsound.
Moreover, the doctrine’s roots in common-law adjudication — where the law actually consists of general principles discerned from the overall course of judicial decisions — mean that it does not transpose neatly (if at all) to constitutional interpretation, where the relevant law consists of an authoritative, written legal text.
Simply put, if the text is the touchstone, judicial precedents contrary to the text are simply not faithful understandings of the relevant law. The Supreme Court’s jurisprudence in constitutional cases has consistently affirmed that core principle, leading the Court repeatedly to emphasise that adherence to precedent is “not an inexorable command.”
Nonetheless, the doctrine retains some intuitive appeal, especially for “conservatives,” as it purports to advance conservative-sounding values of stability, predictability, consistency, humility, and restraint. And it does advance these values, at least to some extent. But the doctrine is slippery, deceptive, and readily manipulated.
In practice, the doctrine often disserves the very policies it claims to serve, undermining predictability and stability and disguising judicial discretion. There is a strong claim that it is not “conservative” at all — that faithful adherence to the Constitution requires just that: faithful adherence to the Constitution, not to faithless departures from its text, structure, history, and original meaning.
Ironically, the staunchest defenders of stare decisis today are liberal, activist judges, who invoke it selectively and perhaps a bit cynically, as a tool for entrenching liberal decisions that are not defensible under the Constitution. That is, they invoke stare decisis precisely to preserve such faithless departures from the text itself.
Like the apple in the Garden, then, the doctrine of stare decisis can be deceptively enticing. Dangled by the devil for evil purposes, the doctrine has an enormous capacity to mislead and deceive. Some nominally “conservative” members of the Court have succumbed to its appeal in the past, including in abortion cases, substituting a corrupted version of the doctrine for constitutional principle.
That is what happened in Planned Parenthood v. Casey, the 1992 decision in which a 5-4 majority of the Court voted to reaffirm Roe v. Wade on the supposed basis of the doctrine of stare decisis — even while changing Roe’s standards and framework and overruling two cases.
Is there a risk that something like this could happen again in Dobbs? Is there a risk of another Casey? Might the Court hold, in the name of stare decisis, that Roe and Casey should be upheld, no matter how wrong they were, how extreme they are, and how atrocious their consequences, simply because they were decided before?
I take up that question next: Does the doctrine of stare decisis require adherence to an egregiously wrong, legally indefensible precedent, in conflict with a proper understanding of the Constitution, simply because it is a precedent?
Republished with permission from The Public Discourse.
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