Published July 1, 2022
Last Friday, the Supreme Court of the United States did something rare and extraordinary. It actually relinquished and returned power that it had held illegitimately for nearly fifty years and returned it to the people and the political process. More specifically, the Court declared that its abortion jurisprudence, beginning with Roe v. Wade, was grievously and egregiously wrong when it invented a right to abortion, grafted it on to the Constitution, and imposed a regulatory regime more extreme and permissive than nearly anywhere in the world. And it reversed the precedents that had, for nearly fifty years, sought in vain for a stable rationale, consistent normative foundation, or intelligible set of rules and standards to make operational this fabricated right. The Court’s opinion in Dobbs v. Jackson Women’s Health Organization is a work of restoration and retrieval, returning to the American people for the first time in decades the opportunity to join the community of nations around the world who govern themselves on the issue of abortion rather than merely submitting to the fiat of unelected judges. And, more importantly, the decision allows Americans to craft legislative and regulatory solutions that provide comprehensive protection and care for mothers, babies (born and unborn), and families from conception, birth, and all points in the human life cycle thereafter.
It is worth reflecting on how we got to this point. Where did the Court’s abortion jurisprudence come from? Why did the Court in Dobbs reverse course? Was American abortion jurisprudence so problematic that it warranted revisiting and renouncing after fifty years? I will demonstrate why the answer is clearly “yes,” in light of the breathtaking lawlessness of the Roe-Casey regime, as well as its real-world consequences, including the encoding into the Constitution a narrative about human identity and flourishing that is false and pernicious.
Abortion in America Before Roe v. Wade
From the nation’s founding until the latter part of the twentieth century, abortion was broadly treated as a crime. At common law, abortion in early America (and in England) was a serious crime when performed after “quickening”—the point at which the mother could detect movement of the child in utero. (There has been some speculation about why the law was framed in this way, but it seems most likely that authorities chose that point in pregnancy as legally relevant for evidentiary purposes, since it would be near impossible for prosecutors to prove guilt beyond a reasonable doubt for taking the life of a victim whose vital signs were undetectable by contemporary medical technology.) Abortions prior to quickening were treated as “unlawful” in the sense that contracts to perform abortions were void as contrary to law and policy; houses that performed abortions were closed on pain of law; and the act of abortion was treated as a predicate for the equivalent of “felony murder,” meaning that an accidental killing that would otherwise be treated as negligence was charged as homicide if it occurred during the performance of abortion. There is no evidence—not a judicial decision, statute, regulation, or commentary from this period—that supports the view that there was a right or liberty interest in obtaining an abortion prior to quickening.
Beginning in the nineteenth century, states began to criminalize abortion explicitly by statute, including from the moment of conception (owing to advances in understanding of embryology, and at the urging of physicians who argued that abortion at any stage of development was tantamount to murder). Indeed, in 1868, when the Fourteenth Amendment to the Constitution was ratified, abortion at all stages of pregnancy was a crime in three-fourths of the states.
Abortion remained strictly regulated by the criminal laws in the United States throughout most of the twentieth century. By the end of the 1950s, in all but four states and the District of Columbia, abortion was illegal at all stages of pregnancy except to save the life of the mother. Thereafter, there was a period of debate and liberalization in some states, though the history here is complex and involved legislative successes on both sides of the question. The New York legislature, for example, liberalized its abortion laws, but then later sought to restore them and was thwarted only at the last moment by the veto of Republican governor Nelson Rockefeller.
On the day that Roe was decided, abortion was illegal at all stages except to save the life of the mother in 30 states. And the states that liberalized abortion laws were still more restrictive than the regime that would be ushered in by Roe itself.
Roe v. Wade
This all changed on January 22, 1973. The case was originally brought in a Texas federal trial court before three judges instead of the usual single judge (owing to a now-defunct statute), challenging the state’s criminal ban on abortion except in cases where a woman’s life is at risk. The trial judges did not hold an evidentiary hearing, and thus there were no factual findings of any kind—scientific, medical, sociological, historical, etc. They simply concluded that Texas’s law violated the Ninth Amendment to the Constitution (“The enumeration in the Constitution, of certain rights, shall not to be construed to deny or disparage others retained by the people”), a provision that had been inchoate and inoperative for most of America’s history. But the trial judges invoked the reasoning from Justice Goldberg’s concurring opinion in Griswold v. Connecticut (1965) that the amendment implied a right to privacy in intimate matters (in that case the use of contraception by married couples), that includes abortion. But the federal trial court refused to enjoin the state’s criminal law under a doctrine of “abstention” that counsels restraint from such interference.
The case was appealed directly to the Supreme Court, where it was argued twice (owing to vacancies on the Court), prior to the announcement of the decision. In a 7-2 vote, in an opinion written by Justice Harry Blackmun, the Court held that there is a fundamental right to privacy that includes the right to abortion, which they located in the Due Process Clause of the Fourteenth Amendment (“No person shall be denied life, liberty, or property without due process of law.”).
How did the Justices discern an unwritten fundamental right to abortion in a provision that was ratified in 1868, adopted to address the great evil of chattel slavery in the wake of the Civil War, at a time when three-fourths of the states criminalized the practice because it was the taking of an innocent human life? They did so by invoking the controversial doctrine of “substantive due process”—the same interpretative theory that gave rise to the individual “liberty of contract” used to invalidate economic regulations at the dawn of the twentieth century, until that line of cases was overturned and repudiated by the Court forty years later. The idea is that some rights are so essential to a just regime that no procedural safeguard is sufficient to make up for their absence.
So why is abortion such an essential right? Justice Blackmun offered a very strange and meandering reflection—based on his own research—on attitudes towards abortion throughout human history, and then appeared to endorse a novel (and false) theory that prior to the nineteenth century there was a pre-quickening right to abortion in America, based on two law review articles written by the counsel to a national abortion advocacy group, Cyril Means. Means’s historical account was so implausible that even Jane Roe’s legal team expressed doubts about it. Nevertheless, because there was no evidentiary hearing below to test such claims for accuracy, Justice Blackmun simply appropriated the arguments as his own.
But the bulk of Justice Blackmun’s argument rested on the concept of privacy in intimate matters—drawing especially on the Griswold case. He concluded that certain zones of privacy involving family, marital relations, child rearing, and suchlike were protected by the Court, and that this should also include the right to abortion. Never mind, of course, that abortion, unlike these other areas, involves the intentional taking of prenatal life rather than intimate, solely self-regarding behavior.
To bolster his conclusion that the right to privacy includes a right to abortion, he discussed the human context in which the question of abortion arises. He framed it as a clash of interests between two atomized individuals. On the one side there is a woman who faces the burdens of unwanted pregnancy (physical and mental) and unwanted parenthood (including the financial, familial, and social burdens or raising an unwanted child). On the other side of the balance are the state’s interests in protecting a being whose presence in the womb constitutes a bodily invasion that threatens the well being and future of the woman carrying it, as well as the state’s interests in promoting maternal health and securing the integrity of the medical profession.
While Justice Blackmun and his colleagues stated that they were agnostic on the moral status of the unborn, the opinion quickly and without anything like the searching analysis to discover a right to abortion declares that the word “person” in the Fourteenth Amendment does not include the unborn human being. But more importantly, the opinion forbids states from adopting any theory of personhood that includes the unborn child and sets her rights on an equal footing with those of the woman carrying her.
Thus, despite its profession of neutrality, the Court implicitly declared in Roe that the Constitution itself contains a theory of personhood that excludes the unborn. States must categorically privilege the interests of the woman over what the Court describes with the biologically unintelligible term “potential life.” Never mind that for the nation’s entire history, up until the moment the opinion was released, states were permitted to include the unborn within the protection of their homicide laws.
This, of course, had no grounding in the text, history, or tradition of the Constitution or American law more broadly. But the Court was not done. Next, it articulated a statute-like framework for balancing the interests of the woman versus the child in her womb as the pregnancy progressed. In the first trimester, the state was forbidden from restricting abortion. In the second trimester, the state could regulate the practice, but only for purposes of advancing maternal health (not in the interests of the unborn child). This was based on Justice Blackmun’s bald assertion (never tested for accuracy by the adversarial process) that at this point in pregnancy abortion is equally or more dangerous than carrying the child to term. Only at the end of the second trimester (which was equated with “viability”—the capacity for the child to survive outside the womb) could the state regulate or ban abortion.
But if it did so, it was required by the Court to make exceptions for circumstances where the life of the mother is threatened (which all laws did), as well as when her health interests were implicated, under a broad conception of “health” that seemed to encompass any aspect of her wellbeing, as determined by the abortionist. The result was a right to abortion on demand until the third trimester, and thereafter until the point of birth so long as abortion provider invoked some aspect of the woman’s wellbeing.
We must remind ourselves that the Justices reached this elaborate conclusion and framework under the auspices of interpreting one clause of the Constitution—the due process clause. At the time, commentators found the conclusion implausible to say the least, and the breadth of the holding shocking. In one opinion, the Justices invalidated almost 200 years of American law and every statute on abortion in America. Liberal scholars such as John Hart Ely and Laurence Tribe marveled at the paucity of the reasoning. Even Ruth Bader Ginsburg expressed shock at the sweeping breadth of the decision. But it stood nevertheless. And for nearly twenty years thereafter, nearly every state law regulating abortion was struck down in the name of Roe.
Planned Parenthood v. Casey
That is, until 1992 when, despite the appointment of multiple Justices by Republican Presidents, the Court in a 5-4 decision affirmed what it described as the “core holding” of Roe. It was a fractured opinion, with a three-judge plurality writing the controlling legal precedent (other Justices concurred and dissented on various points). The case involved the Pennsylvania Abortion Control Act, and constitutional challenges to several of its provisions (the likes of which had been invalided under Roe in previous cases) including a parental consent requirement, mandatory informed consent followed by a 24-hour waiting period, a spousal notification rule, and various reporting requirements abortion facilities.
Even though the plurality stated that it was upholding Roe, the reality of the matter seemed quite different. It shifted the normative justification for the abortion right from privacy to liberty. It downgraded the right from “fundamental” to a mere protected “liberty interest.” It abandoned the trimester framework in favor of a new pre- versus post-viability binary that forbade states from imposing “undue burdens” on the woman’s ultimate right to abortion prior to viability, but allowed regulation thereafter (provided states retained the exceptions for life and health as defined by Roe). States could not prohibit abortion prior to viability, but could impose ancillary side constraints so long as they did not preclude the woman from choosing abortion. Applying this new rule, the Court affirmed as constitutional all the challenged provisions (overruling prior Supreme Court precedents that had struck down identical provisions in the recent past) except for spousal notification.
The Court’s reasoning in affirming what it described as the “core holding” included a discussion of the importance of women being free to make life-defining decisions that enabled them pursue their economic and social goals on an equal footing to men. Like the Court in Roe, the Casey plurality forbade the states from imposing its “theory of life” on women to their detriment. In this way, Casey joins Roe in implicitly holding that the Constitution itself requires that the unborn be treated as less than a person when it comes to the protection of the law.
But the Court’s main reason for reaffirming Roe was the principal of stare decisis—a prudential doctrine that invites (but does not require) Justices to consider the practical consequences of overturning prior precedents that were wrongly decided. Justices are encouraged to ask whether the prior doctrine has been abandoned or undermined, whether new developments call the holding into question, and whether overturning the precedent would disrupt settled interests undertaken in reliance on the precedent. The Court answered the first two questions in the negative, but adopted a novel interpretation of “reliance.” The traditional understanding of the concept was retrospective—looking backwards to ask if overruling a precedent would disrupt past settled interests (usually commercial or economic) taken in reliance on the original precedent.
In Casey, the Court embraced an entirely new approach adopting a forward-looking conception that asks whether anyone might ever be foreclosed from invoking the precedent in the future, should the need arise. The Court claimed (without evidence) that people had defined themselves and their futures in reliance on the availability of abortion should contraception fail or should unprotected sex result in unwanted pregnancy. Despite the radical overbreadth of this notion of reliance, and its admission that reproductive planning could take account of changes in the law going forward, they nevertheless concluded that stare decisis warranted retaining their highly modified, almost unrecognizable version of Roe.
It bears mentioning here also that stare decisis asks courts to consider retaining the prior precedent for prudential reasons; it has never been construed as a license to re-invent the rule, as the Court did here, for the sake of preserving a favored outcome. In this way, too, Casey marked a radical departure from long-standing principles of American law.
The last part of the Casey plurality opinion was in some ways the most troubling. It argued that the Court’s reputation for legitimacy depended on sustaining the most lawless and controversial decision of the modern era. It asserted that if it overturned Roe, the Court would be seen as capitulating to political pressure, not seeming to realize that sustaining Roe despite its obvious and infamous jurisprudential infirmities would look like bowing to political pressure from the abortion rights side. Then, the plurality effectively told the losers (the pro-life side) that it was time to go home and accept the Court’s wise and statesmanlike pronouncement.
Post-Casey
But the plurality’s dream of settling the conflict over abortion did not come to pass. States continued to make attempts to protect the unborn in the law. The “undue burden” standard proved to be unstable and unworkable such that no one—including the Justices—knew or agreed on how it should be applied. In 2016, the Court in a case called Hellerstedt appeared to change the standard for evaluating abortion restrictions again to an open-ended assessment of benefits of the challenged law versus the burdens it imposed, according to the judgment of the Justices without meaningful deference to the legislative branches of government.
Four years later in a case called June Medical Services, in a fractured opinion, four justices voted to retain the prior rule from Hellerstedt, four voted to effectively reverse that precedent, and Chief Justice Roberts issued a concurring opinion articulating yet another test to evaluate state abortion laws. The jurisprudence was in total disarray.
Dobbs
Which brings us to Dobbs—a case evaluating the constitutionality of a ban on abortion after 15 weeks. Given that this was a categorical ban on abortion prior to viability, it squarely conflicted with the Court’s rule in Casey that prior to viability there could be no such prohibitions.
The questions before the Court were first, whether there is a constitutional right to abortion in the first instance, and if not, do the prudential principles of stare decisis counsel the Court to reaffirm Roe and Casey nevertheless. By now, as everyone likely knows, the Court concluded that there is no fundamental unwritten right to abortion in the Constitution, and the principles of stare decisis, in fact, weigh in favor of overturning those precedents.
The Court held that only those unenumerated rights that are deeply rooted in the nation’s legal history and tradition and implicit in the concept of ordered liberty are to be treated as fundamental. In this way, the Court cabined its own discretion and tethered itself to American law in a way that allows it to resist the temptation to “do politics” under the false pretenses of interpreting the Constitution. As is clear from the foregoing discussion, there was never a right to abortion in American law prior to Roe’s invention of it.
To the contrary, it was criminally prohibited in part or in full throughout the sweep of history from the founding. Nor was it even adjacent to other longstanding rights nested in privacy and autonomy, such as marriage, sexual intimacy, child rearing, and the like. In this way, the right to abortion, because it involves intentional killing, is distinguishable from the rights to same-sex marriage or contraception. For this reason, Justice Alito’s opinion (and Justice Kavanaugh’s concurrence) make clear that the Court’s precedents on marriage and contraception are undisturbed by their holding in Dobbs.
As for stare decisis, Justice Alito concluded that the abortion precedents had proven to be unstable, unsettled, unworkable, and had caused both doctrinal and real-world problems. Moreover, there was not detrimental reliance (traditionally understood) sufficient to retain Roe and Casey.
Finally, Justice Alito noted that the Court’s integrity and reputation rises and falls with its willingness to act as a court rather than another political branch of government. Is it to apply the law and let the chips fall as they may, just as the Court had done in Brown v. Board of Education, which overturned a 58 year old precedent that set forth the pernicious “separate but equal” doctrine upon which entire school districts had been built around the country. Despite the disruption of these settled interests, the Court heroically hewed to its role as interpreter of the Constitution.
Conclusion
From the foregoing it should be clear that Roe, Casey, and their judicial progeny inflicted a deep wound on this nation, lawlessly encoding a theory of personhood into the Constitution that relegated the unborn—indisputably living members of the human family—to a sub-personal classification lacking even the most basic legal protections against lethal private violence. This led to abortions on an almost industrial scale: 63 million unborn lives lost since 1973. And worse still, this constitutionally unwarranted action by the Court was rooted in a narrative about human life and flourishing that is false and pernicious. Justice Blackmun and then later the plurality in Casey atomized the individual woman and the baby inside her, and treated them as strangers locked in a zero sum vital conflict over scarce resources—the body and future that properly belonged to the woman. It is thus no wonder that the Court’s solution was to craft a right for the woman to use lethal violence to repel this intruding sub-personal stranger.
Now that Roe and Casey have been consigned to the dustbin of history where they belong, we are free once again in the political branches to frame law and policy according to a true narrative, namely, a sometime tragic crisis involving a mother and her child—two persons who are already inextricably linked—bodily, genetically, by bonds of kinship, and in a web of familial and community relations stretching backwards and forwards in time. The only response of any decent community, of any decent law, to such a crisis of mother and child, is to rush to the aid of both (as well as the father and other family caregivers involved) and surround them with the protection, support, and unconditional love they deserve, not just until the child is born, but throughout their lives and the lives of their families.
Carter Snead, a Fellow at the Ethics and Public Policy Center, is an internationally recognized expert in the field of law and bioethics. His specific areas of expertise include stem-cell research, human cloning, assisted reproduction, neuroscience, abortion, end-of-life matters, and research involving human subject.
Photo by Adam Szuscik on Unsplash
Carter Snead, a Fellow at the Ethics and Public Policy Center, is an internationally recognized expert in the field of law and bioethics. His research explores issues relating to neuroethics, enhancement, human embryo research, assisted reproduction, abortion, and end-of-life decision-making.
