Fun with Roe v. Wade Rhetoric

Some squishier conservatives are now working hard to shy away from any suggestion that President Trump's newest Supreme Court pick, Brett Kavanaugh, might challenge the Roe v. Wade decision.

I'm not exactly sure why anyone's surprised that he or Justice Gorsuch might do exactly that.  Trump campaigned in 2016 as a pro-life candidate and promised to appoint judges to overturn Roe v. Wade.  But now that we have an opportunity to reverse what is possibly the worst and costliest Supreme Court decision in the history of our country, we're being admonished for the open hope that it can be done.

Photo credit: Joe Ravi.

Take young pundit Tomi Lahren, who is, based upon her previous controversial statements, clearly an advocate of a woman's fabricated federal "right" to kill her unborn child, which was created by judicial activism via the Roe v. Wade decision.  She now argues that conservatives supporting a Supreme Court appointee who might "come after Roe v. Wade" make a "mistake," because "we are implying that we are sending a Justice to the bench to carry out religious judicial activism."

Impossible for her to imagine, I suppose, that someone might find Roe v. Wade constitutionally problematic based upon a desire to observe and preserve the simplest principles of constitutional conservatism.  In her mind, apparently, challenging the constitutionality of Roe v. Wade can be the result only of some dogmatic religious zealotry.

Let's take her basic assumption and play a game. 

Which Supreme Court justice made the following observation in 1985?

Roe v. Wade sparked public opposition and academic criticism, in part, I believe, because the Court ventured too far in the change it ordered and presented an incomplete justification for its action.

Which conservative justice was this?  Was it Clarence Thomas?  Antonin Scalia?  William Rehnquist?  No.  It was the same justice who told law students at the University of Kansas in 2005:

When the Supreme Court decided Roe v. Wade in 1973, the law was changing.  Women were lobbying around that issue.  The Supreme Court stopped all that by deeming every law – even the most liberal – as unconstitutional.  That seemed to me not the way the courts generally work.

Which right-wing, religious zealot would dare challenge the constitutionally sound method of legislating a new abortion law from the bench via Roe v. Wade?

It was none other than progressive Justice Ruth Bader Ginsburg.  (Here and here.)

I have little doubt that Ginsburg was as pro-abortion then as today, and yet even she has openly stated doubts about its overly expansive scope and flimsy justification in the context of constitutional law. 

She's not the only pro-abortion, progressive justice to openly notice the fundamental flaws in the ruling.

Justice Warren Burger, who joined the seven-strong plurality in 1973, since expressed doubts about the implied scope of Roe, notably in his dissenting opinion in Thornburgh v. American College of Obstetricians and Gynecologists (1982):

The Constitution does not compel a state to fine-tune its statutes so as to encourage or facilitate abortions.  To the contrary, state action 'encouraging childbirth except in the most urgent circumstances' is 'rationally related to the legitimate governmental objective of protecting potential life.'

This runs us headlong into the most obvious problem with the Roe decision.

The opinion of Roe v. Wade explicitly and arbitrarily decided the means by which abortions must be federally allowed and the means by which States may proscribe it in accordance to federal guidelines, which were newly created by the Court, not by the legislature.  All of this was based upon, as even Ginsburg pointed out in 1985, an "incomplete justification" for the American judicial body to do so.

"For the stage prior to the immediate end of the first trimester," the ruling reads, "the abortion decision ... must be left to the medical judgement of the pregnant woman's attending physician."  Only after that first trimester, the ruling continues, a state "may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health."  Finally, "for the stage subsequent to viability" (which goes entirely undefined), a state may, "in the interest of promoting its interest in the potentiality of human life ... regulate, and even proscribe abortion except where it is necessary" to preserve the life of the mother.

That is the entire law, disguised as legal interpretation, in a nutshell.

Justice Sandra Day O'Connor exposes the fallacious logic employed by the Court in Roe.  In her dissenting opinion in Thornburgh, she argues:

That the Court's unworkable scheme for constitutionalizing the regulation of abortion has had this debilitating effect should not be surprising, however, since the Court is not suited to the expansive role it has claimed for itself.

This is the same Sandra Day O'Connor, I might add, who CNN proclaims held a "touchstone" principle to "steer a middle course on the extremes" on the issue of abortion. 

But O'Connor did the yeoman's work of highlighting the unworkable framework for determining "viability" from the bench in Akron v. Akron Center for Reproductive Health (1983), going so far as to say it is untenable and is therefore "on a collision course with itself."  She continued:

The difficulty with this analysis is clear: potential life is no less potential in the first weeks of pregnancy than it is at viability or afterward.  At any stage in pregnancy, there is the potential for human life[.] ... Accordingly, I believe that the State's interest in protecting potential human life exists throughout the pregnancy.

Why does any of this judicial rhetoric matter?

It matters because several justices, progressive and conservative, pro-abortion and pro-life, have, since 1973, questioned the Roe decision as an unconstitutional usurpation of federal authority by the Supreme Court. 

The purpose of the judiciary is to protect from usurpations of the other two branches.  It is not to invent new rights and new government powers, as the Court did with Roe.  Justice Byron White observed this in his dissenting opinion in 1973:

There is nothing in the language or history of the Constitution to support the Court's judgment.  The Court simply fashions and announces a new Constitutional right for pregnant women and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. 

This is not about the religious doctrines in opposition to killing unborn children.  This is about liberty, and the sovereignty of the people and the constitutional principles of federalism.  It is about constraining federal government, and particularly its judicial branch, to its constitutionally prescribed tether.

Antonin Scalia cites Hamilton in Federalist 78 in his dissenting opinion for the Planned Parenthood v. Casey case in 1992:

The judiciary ... has ... no direction either of the strength or the wealth of the society, and can take no active resolution whatsoever.  It may be truly said to have neither Force nor Will but merely judgment.

The Court had no authority to "invent a new right for pregnant women" or enact enforceable guidelines for abortion allowance among all the states.  Yet ask anyone you know who supports Roe v. Wade what constitutional basis he's founded his opinions  upon, and you'll be met by either a blank stare or defiant platitudes about women's rights.  His will be a matter of opinion, or the morality around the issue of abortion, and anything but the extremely loose constitutional foundation for the ruling, which even the most progressive legal scholars would determine to be loose.  Arguments in abortion cases subsequent to Roe have ruled solely upon the principle of stare decisis and maintaining the institutional integrity of the Court, not the constitutional merits of Roe itself.  (See Justice O'Connor's opinion in Planned Parenthood v. Casey for an explicit example.)

However, I agree with Tomi Lahren in one sense.  The federal government should have no say in determining the answer to this ethical question.  This is why I and other conservatives are not arguing that the Supreme Court practice judicial activism in applying a blanket prohibition of abortion.

William Sullivan blogs at Political Palaver and can be followed on Twitter.