Why Roe/Casey Is Still Unsettled
In his first public criticism of the Supreme Court’s decision in Dred Scott v. Sanford in 1857, future U.S. Senate candidate Abraham Lincoln denied that the decision was “settled”:
Judicial decisions have two uses—first, to absolutely determine the case decided, and secondly, to indicate to the public how other similar cases will be decided when they arise. For the latter use, they are called “precedents” and “authorities.”. . . Judicial decisions are of greater or less authority as precedents, according to circumstances. . . . If this important decision [Dred Scott] had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part, based on assumed historical facts which are not really true; or, if wanting in some of these, it had been before the court more than once, and had there been affirmed and re-affirmed through a course of years, it then might be, perhaps would be, factious, nay, even revolutionary, to not acquiesce in it as a precedent. But, when, as it is true we find it wanting in all these claims to the public confidence, it is not resistance, it is not factious, it is not even disrespectful, to treat it as not having yet quite established a settled doctrine for the country.1
Lincoln’s analysis highlights some—but only some—of the reasons why Roe v. Wade (along with a companion case, Doe v. Bolton) and the Supreme Court’s 1992 decision in Planned Parenthood v. Casey, reaffirming Roe, may be more unsettled today than at any time since 1973.
In Planned Parenthood v. Casey (where the Court upheld all of the abortion regulations passed by the Pennsylvania state legislature except for spousal notification), five Justices declared Roe v. Wade to be “settled” law. In 2000 in Stenberg v. Carhart (where the Court struck down a partial-birth-abortion ban passed by the Nebraska legislature), a bare majority of five Justices applied Roe as though it was settled. But, in the most recent abortion case decided by the Supreme Court, Gonzales v. Carhart in 2007 (where the Court upheld the federal Partial Birth Abortion Ban Act of 2003), a different majority of Justices applied the basic rules of Roe in a manner deferential to the states, causing some, again, to think that Roe was hanging by a thread.
What real evidence is there to think that Roe is settled or unsettled? And what legal, social, or political factors cause it to be unsettled?
Judges refer to the doctrine of stare decisis (sticking to precedent), but that doctrine itself is not settled.2 How and to what extent Supreme Court constitutional precedents should be given “respect” is still a subject of judicial and academic debate.3 Neither the Justices nor scholars share unanimity as to the weight to be given to precedent. Precedent is entitled to some respect, because of the reliance that society, and businesses, and government and families put on the law (shaped at key points by judicial decisions) to be predictable and reliable over time. There is no precise legal test to determine that precedents are finally settled, which means that judges have considerable wiggle room.
Whether Roe was rightly decided is the dispositive issue for many Americans. Clearly, the two sitting Justices who have publicly opposed Roe—Scalia and Thomas—consider it central if not dispositive. And only two of nine Justices in Casey claimed that Roe was rightly decided as an original matter. The Plurality of Justices in Casey who joined one opinion (O’Connor, Kennedy, and Souter) did not and could not defend it as rightly decided, and retreated to the position that whether it was rightly decided could not be the sole factor in treating it as settled law. It is therefore all the more important to understand the factors that keep Roe/Casey unsettled.
Roe 2.0: Planned Parenthood v. Casey
To understand where we are in 2014, it’s essential to recognize that Roe 1.0—the original opinion including the original rationale for Roe—is defunct, discarded in 1992.4 The two holdings (rulings) of Roe—that there is a federal (national) right to abortion, and that the unborn are not constitutional “persons” within the protection of the Fourteenth Amendment—are still the “law of the land” because the federal courts and public officials still obey them, and because they haven’t been overturned by legally-recognized means.
But the rationale for Roe was replaced by a new rationale created by the Casey Plurality in 1992. They said that a national right to abortion should be reaffirmed because women have come to rely on abortion as a back-up to failed contraception. (A book published in 2006, What Roe v. Wade Should Have Said, could find no scholar to defend the original opinion in Roe; even those who supported the result tried to find an alternative rationale to Justice Blackmun’s.) As Professor Michael Paulsen has said, “it is impossible to blame Roe for abortion law after 1992. That blame rests with Casey.”5
Is Roe/Casey Legally Settled?
Let’s imagine the strongest “case” that supporters might make that Roe/Casey is settled: Roe is 41 years old. The Plurality in Casey “call[ed] the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.” Casey clearly reinforced the “right” to abortion, and in fact was an attempt to fix, stabilize, and entrench Roe. And in the 22 years since, the federal courts have continued to impose Roe/Casey. Recently, federal courts have imposed injunctions against a 20-week gestational limit on abortion in Arizona, a 20-week limit in Idaho, a 12-week limit in Arkansas, and a 6-week limit in North Dakota. Public opinion polls periodically show majority “support” for Roe. Women still seek approximately 1.1 million abortions per year and rely on it for reproductive freedom. Roe has significant political and social support from the Democratic Party, almost all state-wide Democratic Party officeholders and candidates, TV networks and major newspapers, most medical and legal organizations, and wealthy foundations. The most pro-abortion president in American history, Barack Obama, has been elected and re-elected. The Court has “reaffirmed” a “right” to abortion—if not Roe—at least four times: in Akron (a 1983 decision striking down Ohio abortion restrictions), Thornburgh (a 1986 decision invalidating Pennsylvania’s restrictions), Casey, and Stenberg.
But Lincoln’s six factors—and others—suggest that Roe/Casey is still unsettled. The original vote in Roe was not unanimous. (Both Dred Scott and Roe were decided by 7-2 votes.) Two Justices—Burger and Powell—subsequently recanted their support for the original opinion in Roe. The reasoning of Roe has been abandoned by Justices and by scholars. Clearly, today, the support for Roe is based on “partisan bias” and does not command support from Justices of both parties. Roe was not in accord with “legal public expectation.” The abortion “right” and the sweep of that “right” did not have the steady support of executive departments. Without any evidentiary record, it was based on “assumed historical facts” that were not true. And Roe, as originally written, has not been affirmed and reaffirmed; instead, it has been repeatedly changed and altered.
But the Plurality in Casey did not apply Lincoln’s factors. Instead, the Plurality condensed prior applications of stare decisis by the Supreme Court into four factors: workability, reliance, change in law, and change in facts, and emphasized reliance more than the others. They concluded that these justified sticking to Roe.
Like the Justices’ original consideration of abortion in Roe, the consideration of these four factors in 1992 was not careful or scrupulous. When the Justices agreed to hear Casey on January 21, 1992, they expressly limited the questions to be addressed to the validity of the five challenged Pennsylvania regulations.6 At some point during the course of briefing and deliberation, however, various Justices decided to preempt the inevitability of future cases challenging Roe and settle the overruling of Roe in Casey. Since they did not ask for briefing on these factors, or on the doctrine of stare decisis generally, their consideration was largely patchwork. The Plurality’s treatment of stare decisis in Casey was lampooned in 2008 as an artificial product, created on the spot in 1992 just to defend Roe but not consistently followed by the Court since then.7 The logic of these four factors has been criticized and 22 years of experience challenge each of them.
The Plurality in Casey never defined this factor, but casually shrugged it off in a single sentence by saying that Roe had just established a “simple limitation beyond which a state law is unenforceable” (the rule that a woman has a right to abortion before fetal viability). For several reasons, this is simply untenable.
As I explain in Abuse of Discretion, the Court took the Roe and Doe cases in April 1971 to decide a rather mundane issue about federal-state court jurisdiction. But after the sudden retirements of Justices Black and Harlan due to ill health in September 1971, a temporary majority of four Justices decided to use Roe and Doe to settle the abortion issue, declare a right to abortion, and sweep away the abortion laws. Since Roe and Doe had no trial on abortion, the Justices decided the two cases without a factual record, disregarding numerous past decisions where the Justices said that they would not decide constitutional issues without an adequate record. That evidentiary vacuum tempted the Justices to rely upon their own hunches, experiences, and prejudices to decide the abortion issue, and that led to numerous misunderstandings and miscalculations that have created turmoil over the abortion issue ever since.
Perhaps the most serious of those mistakes was the assumption, adopted without an evidentiary record, that “abortion was safer than childbirth.”8 This was contrary to all reliable data in 1973, and it is contrary to the best data today. Unfortunately, this mistaken assumption drove the result in Roe. It encouraged the Justices to prohibit health and safety regulations in the first trimester, and to defer to the self-regulation of abortionists, which has caused the public-health vacuum that threatens women’s health today.9 It also encouraged the Justices to expand the “right” throughout pregnancy.
Another of those mistakes is the viability rule, which has been criticized as arbitrary from Day One. Numerous legal scholars have shown why the viability rule is unworkable,10 and its illogic has been recognized in prenatal injury, wrongful death, and fetal homicide law, where it has been increasingly discarded.11
The Court has “retreated” from Roe, and revised it several times in order to make Roe/Casey “workable.”12 The Plurality in Casey expressly overturned two prior abortion decisions as too-rigid applications of Roe, to make it more workable in their eyes.
How can the Justices decide whether Roe is “workable” when they have heard only three cases (on the merits) over 22 years (Stenberg, Ayotte, and Gonzales)? Despite assuming the role of the national abortion control board, controlling every aspect of abortion policy in all 50 states, the Justices have been oblivious to what is happening in clinics and have refused to hear dozens of abortion cases over the years, which is the only means by which the Justices could monitor their own handiwork. It’s easy to pronounce something “workable” if you consistently ignore it, and the more you ignore it, the more likely you’ll find it “workable.” (In the 2013 Term, the Court refused to hear three more abortion cases.)
Another way to assess “workability” is to look at how the federal courts have applied Roe/Casey. Predictably, the new “undue burden” standard adopted in Casey turned out to be unworkable. “Undue burden” was revised in Gonzales for the somewhat more specific “substantial obstacle” standard, which Gonzales indicates might be more accurately described as a “substantial obstacle to a safe abortion” standard. It is fair to say that, for 41 years, the federal courts have constantly battled over the meaning of Roe/Casey. Since 2007, the lower federal courts have been disagreeing over the meaning of Gonzales.
A very powerful case against Roe was presented to the Supreme Court in Casey. But this was not enough, at the time, to topple Roe and return the issue to the legislative and democratic process in the states. The Plurality retreated to the position that women had come to rely upon abortion as a backup to failed contraception for equal opportunity in American society.13
It’s important to examine the “reliance interests” rationale for Roe/Casey, which lies at the heart of the Court’s—and the public’s—support for legal abortion: the notion that legal abortion has been good for women. Careful examination in fact supports the conclusion that the truth is exactly the opposite: If women have come to rely upon abortion, it has been to their detriment. That women rely on abortion was assumed in Casey. That such reliance on abortion was good for women was also assumed, not documented. In fact, there’s growing data that it is harmful, and there are better alternatives for a woman’s long-term physical and psychic health and relationships. And the public and their elected representatives are better equipped to assess this—as they do other public-health issues—than judges.
The Plurality’s consideration of reliance in Casey was based, in large part, on the factual misunderstanding that overturning Roe would result in abortion becoming immediately illegal, abruptly overturning expectations. But the fact of the matter is that, if Roe/Casey were overturned tomorrow, abortion would be legal in 40-45 states (up to 20 weeks at least), since there are no enforceable prohibitions on the books in those states (before 20 weeks or fetal viability). The Justices’ assumption that overruling Roe would result in making abortion immediately illegal was completely wrong.14
And the Justices’ consideration of “reliance” in Casey was (as in Roe and Doe) not supported by an evidentiary record. The Plurality in Casey spent pages emphasizing judicial integrity and proper judicial process, but ended up reaching a judgment about reliance without an evidentiary record on the questions. Instead, they relied on their hunches, experience, and prejudices about reliance. In support of their conclusion that American women had come to rely upon abortion as a backup to failed contraception for equal opportunity in American society, the Plurality cited just one page in one book, Abortion and Woman’s Choice, by Rosalind Petchesky. That alone suggests that the foundation for “reliance” is very limited.
There are numerous problems with the assumption of reliance. The Justices assumed both that abortion allows women to control their reproductive lives, and that control of their reproductive lives enables women to achieve equal opportunity in American society. However, reliance of women on abortion as an empirical matter has not been demonstrated. In the two decades since Casey, mounting international medical data suggests that abortion has significant long-term risks. In addition, there is a long track record of substandard conditions in clinics. Studies find a negative impact from abortion on relationships. Abortion results in emotional and relational instability with long-term consequences.
As the Supreme Court has failed in its self-appointed role as the national abortion control board, the states have moved in to fill the public-health vacuum, taking advantage of the numerous Supreme Court retreats from Roe to enact regulations that weren’t possible before 1992—including informed consent laws, ultrasound laws, partial-birth-abortion prohibitions, and clinic regulations. Approximately 13 states have enacted 20-week limits since the Court’s 2007 decision in Gonzales v. Carhart. (The Court refused to hear the Arizona appeal in January 2014, but other test cases may arise.) States better understand the public-health vacuum created by the Court and, in light of the Court’s negligence, have sought to fill it. And these trends have developed while the number of women serving as state representatives has grown. In many states, women are the leaders in sponsoring limits on abortion.
Even if we assume that women have relied on abortion, the Plurality in Casey admitted that “reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions.” There will be no immediate change. Over the course of one or two years, some states will change; others might not. Men and women would be able to alter their expectations in light of the potentially changing availability of abortion in particular states, and that would most likely contribute positively to women’s physical and psychological health.
Change in Law
What changes in law should be relevant in deciding whether to stick to Roe? The most direct legal change has been to the Justices’ own abortion doctrine in order to fix the problems they created in Roe.
Changes in law since 1973 have increased women’s rights. The legal disabilities that women experienced before 1973 have been removed by state or federal legislation, and these changes do not depend on Roe.
American law has not reinforced the Court’s abortion doctrine. Just as abortion is marginalized from American medicine, abortion law is marginalized from American law. Roe/Casey is isolated in the law as a rigid national policy that women have a right to abortion before fetal viability.
The law has moved away from the abortion doctrine. Perhaps the only federal law to support abortion is the Federal Access to Clinic Entrances Act (FACE), which is more about preventing violence than supporting abortion. And in fact, few states have passed legislation to support abortion. The California law of 2013 that deregulated abortion stands out by its uniqueness. The Cuomo bill of 2013 in New York State was killed—in New York of all places! Congress did not expressly support abortion by vote in the Affordable Care Act (ACA) in 2010. Congressional leaders denied that the ACA would fund or subsidize abortion. Public funding is denied in most states. The states have enacted all kinds of limits on abortion.
The viability rule of Roe has three fundamental problems: Its creation was arbitrary and was dictum in both Roe and Casey. The line was created by focusing only on the status of the “fetus” and without regard for the health implications for women from late-term abortions. And it is way out of line with American public opinion and international standards. It allows late-term abortions that threaten women’s health, and it leads to live-birth abortions. The viability rule may stand because federal judges insist on it, but the tension is rising.
Finally, property, prenatal injury, wrongful death, and fetal homicide law, all of which more strongly protect prenatal life than was the case in 1973, have created increasing legal schizophrenia. Despite Roe, the states have moved ahead with state legislation and judicial decisions that treat the unborn child as a human being or person from conception.15
Change in Facts
What facts might be relevant to sticking to Roe? In Casey, the Justices said that no facts had changed since Roe to overrule it. There are substantial reasons to question whether the Justices can be trusted to recognize and identify any “change” in the “facts.”
First, the Justices have often ignored the facts. They issued their sweeping decision in Roe despite no trial or evidentiary record in either Roe or Doe. They repeated this mistake in Casey, when they identified a new rationale for Roe—the reliance interests of women—without any evidentiary record.
The Justices made numerous assumptions in writing Roe that have proven false: who would do abortions, support from the medical profession, clinic standards and safety, short-term risks, long-term risks, legal protection for the unborn child, how the public views the unborn child, how the states would react, the facts of maternal health, whether Congress or the states would fill the public-health vacuum, and many more. These mistaken assumptions have led to persistent substandard conditions in clinics and short-term risks to women, threats to the long-term physical and psychic health of women, and long-term political and social turmoil against the Court and the Roe decision.
The medical picture is changing. Since Casey, a growing body of international medical data has shown increased long-term medical risks to women after abortion. In recent years, studies from Ireland and Chile have provided evidence that legal abortion prohibitions do not compromise women’s health and that legalizing abortion does not positively impact women’s health.
Second, what qualifies the Justices to say what facts are relevant and whether the facts have changed? The Justices have a certain “conflict of interest” here: The conclusion that changed facts justify the overruling of Roe/Casey calls into question the wisdom of their original ruling. Why should the Justices sit in judgment on “changed facts” when, in Roe, they issued a sweeping judgment without an evidentiary record, and repeated that mistake 19 years later in Casey?
Is Roe/Casey Politically Settled?
The four factors considered by the Plurality in Casey do not adequately perceive the legal, social, cultural, and political developments and trends that keep Roe/Casey in flux.
Does the public support Roe/Casey? This question consistently overlooks the fact that the public doesn’t understand Roe/Casey (which shouldn’t surprise anyone, since other polling studies show that the public doesn’t understand what the Court does or any of the decisions the Court makes). The Pew Poll in January 2013, at the time of the 40th anniversary, had to distort what Roe actually said and did—by describing the abortion “right” created as only legalizing abortion in the first trimester—in order to find majority support.
The abortion issue in 2014 is not the abortion issue of 1973 or even 1992. Abortion has been marginalized from American medicine for decades. The annual number of abortions declined 25 percent between 1992 and 2006, and dropped another 5 percent in the most recent reporting year. The number of abortion providers has dropped considerably. There has been significant growth in legal protection for the unborn child in prenatal injury, wrongful death, and fetal homicide law. Those areas of the law provide stronger legal protection for the unborn child than existed in 1973. A body of international data on the risks to women has grown over the past two decades. The substandard conditions in clinics are becoming more widely publicized. The Supreme Court has retreated at least three times from the harshest application of Roe v. Wade—in 1989, 1992, and 2007—and each time the Court has given more deference to the states.
In addition, there is stronger public opinion for reducing and limiting abortion:
• 2003 USA Today/CNN/Gallup poll: Over 70 percent support regulations like informed consent, parental notice, waiting periods.
• 2004 Zogby poll: 56 percent said abortion should be legal only in rape, incest, or to preserve the life of the mother; another 25 percent said abortion should only be allowed during the first 3 months of pregnancy.
• June 2011 Gallup poll: 71 percent v. 24 percent said abortion should be generally illegal in the second trimester.
• August 2011 Gallup Poll: 90 percent of self-described pro-life Americans and 52 percent of self-described pro-choice Americans think “abortion should be illegal in 2nd trimester.”
• A consistent majority of 60-70 percent support abortion only in “certain circumstances.”
• Only 7-9 percent of Americans support the result in Roe: abortion for any reason, at any time of pregnancy.
• The May 2012 Gallup poll “. . . showed that people were more likely to identify as ‘pro-life’ rather than pro-choice by a 50 to 41 margin.”
What is more relevant than “support for Roe” is whether the public supports the scope of Roe and what Roe allows. Numerous polls show that the public supports abortion only in limited circumstances early in pregnancy.
The mere passage of time does not mean that a case is settled. Plessy v. Ferguson was 58 years old when it was overturned in 1954 by Brown v. Board of Education. The Court’s decision in the Slaughter House Cases of 1873 is still criticized by academics and Justices. There’s a very real, pragmatic sense in which Supreme Court decisions are settled until they are unsettled.
Roe/Casey is unsettled because it was so poorly put together, without an evidentiary record, based on hunches, assumptions, and prejudices. The hunches, assumptions, and prejudices collided with the medical reality of fetal development. The Justices were fairly blindsided by ultrasound when it appeared on the American commercial market a few years after Roe, and ultrasound permanently changed public opinion. They also miscalculated the reactions of doctors and the reactions of legislatures. And the dictates based on those hunches and assumptions have sown discord. Roe’s fundamental, inherent defects fostered a decision that was out of line with international standards and out of line with public opinion and created a public-health vacuum of substandard care. Despite those problems, the notion that abortion is good for women is the glue that holds Roe/Casey together today, with five of the current Justices.
In this world, truth does not always win out. As sociologist James Davison Hunter has pointed out, ideas have consequences “not because those ideas are inherently truthful or obviously correct but rather because of the way they are embedded in very powerful institutions, networks, interests, and symbols.” A large, persistent, persevering political movement has challenged Roe/Casey since 1973. But powerful social, legal, and political forces are working to prop up Roe/Casey. Due to the original miscalculations, the medical realities, and the change in public opinion, the process of future unsettling may be inexorable, but only if a growing political movement presses the case with renewed energy, stronger organizations, greater resources, and political success.
1. See generally, Michael Stokes Paulsen, “Lincoln and Judicial Authority,” 83 Notre Dame L. Rev. 1227 (2008).
2. See generally, Michael Stokes Paulsen, “Abrogating Stare Decisis by Statute: May Congress Remove the Precedential Effect of Roe and Casey?,” 109 Yale L. J. 1535 (2000).
3. See generally, Randy Beck, “Transtemporal Separation of Powers in the Law of Precedent,” 87 Notre Dame L. Rev. 1405 (2012); John O. McGinnis & Michael B. Rappaport, “Reconciling Originalism and Precedent,” 103 Nw. U. L. Rev. 803 (2009).
4. See Paul Benjamin Linton, “Planned Parenthood v. Casey: The Flight From Reason in the Supreme Court,” 13 St. Louis U. Pub. L. Rev. 15 (1993).
5. Michael Stokes Paulsen, “The Worst Constitutional Decision of All Time,” 78 Notre Dame L. Rev. 995 (2003).
6. 502 U.S. 1056-1057 (1992).
7. Michael Stokes Paulsen, “Does the Supreme Court’s Current Doctrine of Stare Decisis Require Adherence to the Supreme Court’s Current Doctrine of Stare Decisis?,” 86 N. Carolina L. Rev. 1165 (2008).
8. See Clarke Forsythe, “The Medical Assumption at the Foundation of Roe v. Wade and Its Implications for Women’s Health,” 71 Wash. & Lee L. Rev. 827 (2014).
9. Clarke D. Forsythe & Bradley Kehr, “A Road Map Through the Supreme Court’s Back Alley,” 57 Villanova L. Rev. 45 (2012).
10. Randy Beck, “Gonzales, Casey and the Viability Rule,” 103 Nw. U. L. Rev. 249 (2009); Randy Beck, “The Essential Holding of Casey: Rethinking Viability,” 75 UMKC L. Rev. 713 (2007); Paul Benjamin Linton, “Planned Parenthood v. Casey: The Flight From Reason in the Supreme Court,” 13 St. Louis U. Pub. L. Rev. 15 (1993).
11. See Paul Benjamin Linton, “The Legal Status of the Unborn Child under State Law,” 6 U. St. Thomas J. Law & Pub. Pol. 141 (2012).
12. See Michael F. Moses, “Institutional Integrity and Respect for Precedent: Do They Favor Continued Adherence to an Abortion Right?” 27 Notre Dame J. Law Ethics & Pub. Policy. 541 (2013).
13. See Clarke D. Forsythe & Stephen B. Presser, “The Tragic Failure of Roe v. Wade: Why Abortion Should be Returned to the States,” 10 Texas Rev. of Law & Pol. 85 (2005).
14. See Paul Benjamin Linton, “The Legal Status of Abortion in the States if Roe v. Wade is Overruled,” 27 Issues in Law & Med. 181 (2012).
15. See Paul Benjamin Linton, “The Legal Status of the Unborn Child under State Law,” 6 U. St. Thomas J. Law & Pub. Pol. 141 (2012).
* * * * *
Clarke D. Forsythe is Senior Counsel, Americans United for Life, and author of Abuse of Discretion: The Inside Story of Roe v. Wade (Encounter Books 2013). He is the recipient (along with Kristan Hawkins) of the Human Life Foundation’s 2014 Great Defender of Life Award.
Indeed, it has been changing the way we live.
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