Legislative Blog
J.B. Williams, J.D.
Leaked Opinion
A Blog about Abortion
A Bit of Background
The following backgrounds help summarize the author's views on both the general topic: Other and more specifically Abortion as it relates to that topic.
Brief Summary of Other
Topics here may be related to legal matters but not innately legal. For instance, discussing grocery plastic bags versus cotton cloth bags. The item itself is not legal but many city governments have placed it into legislation.
Summary of Abortion
This topic is getting a lot of press again right now. It is always bubbling in the background, and now it seems to be at a boil. My opinion has always been that this is not a right protected under the constitution - that is there is no right to an abortion. I feel much the same about the claim of right to healthcare. You do not have the right to force someone else to provide these things to you. That being said, I also feel that you should not be required to continue a pregnancy that was a mistake - either contraceptive failure or assault. But I also feel that you need to be a responsible adult, and at a point there is a life inside of you that is owed protections as well. Since I do not think it is a Constitutional right, I have always felt state legislatures should be the ones making the laws. And they should be responding to their constituents when doing so.
Blog Summary
R.B. Ginsburg in Speaking in a Judicial Voice, 1992 New York University Law Review, 'Roe may have halted a political process, prolonged divisiveness, and deferred stable settlement of the issues.'
Since Roe v Wade (1973) the abortion issues seems to have been extraordinarily divisive. A multitude of people have a strong opinion of whether it should be permitted or not, and have no desire to listen to opposing views. Roe created a precedent making abortion a right, and Casey (1992) upheld this right though in a different manner entirely.
In the words of N. Gorsuch, 'Precedent is a way of accumulating and passing down the learning of past generations, a font of established wisdom richer than what can be found in any single judge or panel of judges.' This is the importance of stare decisis. However, if one of the constitutional decisions goes astray, 'the country is usually stuck with the bad decision unless we correct our own mistake.'
Even those who agreed with the outcome of Roe, agreed that it was not constitutional law and that it gave no sense of trying to be. Even Ruth Bader Ginsburg said that Roe was a faulty decision. She felt it was too far-reaching and too sweeping. She would have preferred that abortion rights be secured more gradually, and that it include state legislatures. During the time between Roe (1973) and Casey (1992), there were 5 challenges requesting the Court to overturn Roe. In Casey the court was again ask to overturn Roe, and return the decision to the people through their legislatures.
The court in Casey turned the abortion right to the Due Process Clause of the Constitution. If caution is not used the Due Process Clause may be, as the Court cautioned in Glucksberg, 'transformed into the policy preferences of the Members of this Court.' A scary thought for all. Currently legislatures, those elected by the people, make laws. The people have the power to not re-elect someone, to submit requests for changes to laws, to seek to be elected, and to challenge laws in Court. If the highest court makes a decision that is not based upon the constitution and is not in agreement with the people, to whom do they turn. Or should the court make decisions that the people currently agree with, and in 20 or 30 years expect those to be overturned as the societal normals shift.
The disruptive effect on other areas of law because of the decisions in Roe and Casey have been far reaching. Abortion cases have diluted the Supreme Court's strict standard for constitutional challenges. See United States v Salerno, 481 U.S. 739. They have ignored third party standing doctrine. See Warth v Seldin, 442 U.S. 490 and Elk Grove Unified School Dist v Newdow, 542 U.S. 1, with June Medical, 591 U.S. 28 and Whole Women's Health, 579 U.S. 4. 'They have fluted the ordinary rules of the severability of unconstitutional provisions,' and 'the rule that says that statutes should be read where possible to avoid unconstitutionality.' They have distorted First Amendment doctrines. See Sternbur v Carhart, 530 U.S. 914, Hill v Colorado, 530 U.S. 703. The courts continued exceptions to longstanding background rules means it fails stare decisis, the very thing it purports to uphold.
Leaked Opinion
Published: 2022-05-16
Let's begin by looking at a few times the Court has overturned prior decisions. Following are 6 of those times the Court has overruled prior decisions. Decisions I think we can all agree we are glad the Court did so.
Plessy v Ferguson (1896) was overruled by Brown v Board of Education (1954). In Plessy the Court ruled that race-based segregation was legal as long as it was separate but equal. That ruling stood for 58 years. Plessy had six other Supreme Court decisions that had applied the separate but equal rule, and all of them were upended when Brown was decided. In 1951 Oliver Brown (13 parents) sued Topeka's Board of Education challenging the Plessy precedent. It was not until 1954 that the Court overturned Plessy, establishing that race-based segregation was unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. 'To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.' (Chief Justice Earl Warren from the unanimous opinion of the Court.)
Lochner v New York (1905) (standing for 32 years) and Adkins v Children's Hospital of D.C. (1923) were overruled by West Coast Hotel Co v Parrish (1937). In Lochner a baker challenged a New York statute that limited hours for working in a bake shop to 60 hours per week. The Court held that the law interfered with employer-employee contracts and was government overreach, and that it violated the 14th Amendment's Due Process Clause. In West Coast Hotel, the Court ruled that it was constitutional to establish a minimum wage law. This ended the Court's avoidance of regulating business. Two other cases were overruled when West Coast Hotel was decided.
Bowers v Hardwich (1986) (stood for 17 years) was overruled by Lawrence v Texas (2003). In Hardwick the Court ruled that there was no constitutional protection of sodomy and the states could outlaw homosexual intercourse. In Lawerence, the Court reversed Hardwich in a 6 to 3 ruling. The Court ruled that making it a crime for two men to have sex violated the Fourteenth Amendment's Due Process Clause.
Wolf v Colorado (1949) (stood for just 12 years) was overruled by Mapp v Ohio (1961). Wolf involved evidence that was illegally obtained being used in evidence against Defendant in violation of his Fourth Amendment right. The Court said illegally obtained evidence did not have to be excluded from the court by default. In Mapp the Defendant was convicted based upon materials seized during an illegal search of her home during a separate investigation. Tom Clark in the majority opinion wrote, 'The ignoble shortcut to conviction left open to the State tends to destroy the entire system of constitutional restraints on which the liberties of the people rest. Having once recognized that the right of privacy embodied under the Fourth Amendment is enforceable against the States, and that the right to be secure against rude invasions of privacy by state officers is, therefore, constitutional in origin, we can no longer permit that right to remain an empty promise.'
Pace v Alabama (1882) (stood for 85 years) was overruled by Loving v Virginia (1967). In Pace, the Court held that despite more severe punishments levied against African-Americans in violation of the law against interracial relationships, it did not violate the Fourteenth Amendment's Equal Protection Clause. In Loving, the Court agreed that a law banning inter-racial marriages violated the Equal Protection Clause of the Fourteenth Amendment. Chief Justice Earl Warren wrote, 'Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.'
Mincersville School District v Gobitis (1940) (stood for just 3 years) was overruled by West Virginia Board of Education v Barnette (1943). It held that students could not be compelled to salute the flag in violation of their sincere belief. Nothing had changed between the cases, other than the Court's recognition that they had previously decided incorrectly.
Roe v Wade (1973) - standing for 49 years, unless you count the modifications to it made in Casey, then only for 19 Planned Parenthood v Casey (1992) - standing for 30 years
For a right not explicitly mentioned in the Constitution to be recognized, it must be 'objectively, deeply rooted in this Nation's history and tradition.' This is an necessary endeavor when ask to recognize a new component of the 'liberty' being protected by the Due Process Clause. (Don't be confused by it being a right to privacy as that concept was tossed in Casey.) The term liberty when used means different things to different people. The Court must 'guard against the natural human tendency to confuse what the Amendment protects with our ardent views about the liberty that Americans can enjoy.' Confusing them may allow the court to usurp authority which the Constitution has entrusted to elected representatives. If caution is not used the Due Process Clause may be, as the Court cautioned in Glucksberg, 'transformed into the policy preferences of the Members of this Court.' Something I think everyone should view as a bad idea. If for no other reason then stare decisis would all but be tossed out each time the Court's members changed significantly.
There were times when the Court has fallen prey to freewheeling judicial policymaking. See the above cases for some of those times. The Court must look to our Nation's history and tradition for the essential components of what our Nation has as ordered liberty under the Fourteenth Amendment. Until the later part of the 20th century there was no support in American law for the constitutional right to obtain an abortion. None even existed in a state constitution. That is until Roe was decided. Instead abortion had been a crime in almost every state until shortly before Roe. Common law viewed abortion as a crime in, at least, some stages of pregnancy and would have consequences at all stages. When the Fourteenth Amendment was adopted, three-quarters of the states had made abortion a crime at any stage of pregnancy, and the remaining states soon followed. Roe did not follow that history, and Casey merely followed Roe's basic reasoning. (See blog: State Laws prior to passage of the 14th Amendment.)
In fact, in the 13th Century causing an abortion was seen as committing homicide, especially if the fetus has 'animated'. (This animation was cited as quickening or a quick child.) This continued to be the view into the 17th century. At the time the U.S. Constitution was being drafted, abortion was viewed by ancient law as homicide or manslaughter. In 1732 Eleanor Beare was convicted of causing a miscarriage, and sentenced to 2 days in pillory and 3 years imprisonment. There appears to be no common law authority on the right to procure an abortion at any stage of pregnancy, merely a difference in the severity of punishment for abortions committed at different points during a pregnancy.
The proto-felony-murder rule was stated in manuals for justices in the 18th century. Anyone prescribing medication to unlawfully destroy the child (unborn child) would be guilty of murder if the woman died. And they restated the common law rule against abortion. A 1652 case found it murder to destroy the child in the womb, and by the 19th century courts frequently explained that common law made abortion of a quick child a crime. The focus on quickening may have been brought about as it was the first period when pregnancy was truly known. There was no scientific method to determine it with certainty prior to the fetal movement.
In the 19th century the quickening focus was criticized at common law as it was not in accordance with medical experience or prior common law. In 1803 the British made abortion a crime at all stages of pregnancy and authorized the imposition of severe punishment. During this time the majority of States enacted statutes criminalizing abortion at all stages of pregnancy. In 1868, 28 of 37 states, had statutes making abortion a crime at any state of pregnancy. Of the 9 remaining states, all but 1, criminalized abortion by 1910. Of the 13 territories, all of them criminalized abortion at all stages of pregnancy between 1850 (Hawaii) and 1919 (New Mexico).
In Roe v Wade (1973), the Court admitted that all but 3 states and the District of Columbia prohibited abortion unless it was done to save or preserve the life of the mother. And during the time Roe v Wade was in litigation, 30 states still prohibited abortion at all stages, and 1/3 criminalized some. (The exception for all was the save or preserve the life of the mother.) This finding alone shades the finding of abortion being a liberty. The right to abortion was not deeply rooted in the Nation's history and traditions. They should have found sentiment similar to Glucsberg, 'Attitudes toward [abortion] have changed,' ...'but our laws have consistently condemned, and continue to prohibit, [that practice].' Instead the Court took it upon themselves to legislate, something a Court should never do. We will never know, if left to their own devices more states would not have shifted over time through legislation. Instead the battle has become ever more fierce with parties on both sides digging in and backing further apart.
The basis for Roe were two pro-abortion advocate articles that claimed that the common law had been intentionally misstated. But these articles have been discredited, and even members of Roe's legal team did not view them as serious scholars. Arguing that pre-quickening abortions were legal in common law is not accurate. States retained the right to enact laws, and did so without challenges to fundamental rights. Roe viewed the right to abortion as integral to the right to privacy; and Casey viewed it as the freedom to make intimate and personal choices. The Court in Casey stated 'at the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.' The Court did not find it to be an absolute right. Ordered liberty sets limits and defines the boundary between competing interests. And legislatures across the Nation are free to determine what that ordered liberty should look like, thereby deciding how abortion should be regulated.
Casey relied on Roe, as well as other decisions. They varied from the right to marry a person of a different race, right to obtain contraceptives, right to make decisions about the education of one's children, the right not to be sterilized without consent, and the right to not undergo involuntary surgery or forced medications. Abortion destroys what the other decisions call 'potential life'.
It seems that while both sides made cogent arguments, supporters of Roe and Casey needed to show that the Court had the authority to weigh those arguments and determine what limits there were on States regulations of abortion. The Court is not saying that abortion is legal or illegal, they are merely returning the power to the people and their elected representatives.
In the words of N. Gorsuch, 'Precedent is a way of accumulating and passing down the learning of past generations, a font of established wisdom richer than what can be found in any single judge or panel of judges.' This is the importance of stare decisis. However, if one of the constitutional decisions goes astray, 'the country is usually stuck with the bad decision unless we correct our own mistake.'
Janus V State County set out a framework for determining when a precedent should be overruled. The five factors in favor of overruling Roe and Case: 'nature of their error, the quality of their reasoning, the workability of the rules they imposed on the country, their disruptive effect on other areas of law, and the absence of concrete reliance.'
Taking each one in turn:
Nature of their error. Roe's constitutional analysis was outside the reasonable interpretation of other constitutional provisions. The court made a moral and socially important decision that should have been left to the people. Overturning Roe and Casey merely returns the control to the people. Rather then having embroiled arguments from both sides, neither of which can currently convince a legislature to change the rules in any meaningful way; the Court has taken control of this decision and will be ask time and time again to revisit it.
The quality of their reasoning. Roe found the Constitution implicitly conferred a right to abortion. There were no grounds in text, history or precedent listed; and none have been provided. It even concocted an elaborate trimester set of restrictions, but failed to show any basis for these in the Constitution, in the history of abortion, in prior precedent or otherwise. (None of the party's in the Roe case presented the trimester rules or even suggested this. It came completely out of the Court's own rulings. Appearing more like a legislation than a ruling.) It ruled that the States could not protect fetal life prior to 'viability' but never explaining the basis for this. Casey threw out Roe's trimester rules, and replaced it with an 'undue burden' test and then, merely, relied on stare decisis as the basis for doing so.
The Court in Roe did site numerous outside matters, like the position of the American Medical Association and the new British abortion law, to name a few. None of which had the trimester rules, and no explanation as to why these shed light into the meaning of the Constitution. The inquiries made by the Court looked much more like inquiries made by legislatures than ones Judges' of the highest court.
Regarding the right to privacy - the right to shield information from disclosure and the right to make/implement important personal decisions without government interference. The first right has no relevance for abortion being legal or not. The cases involving the second included a ruling that gave parents the right to send children to a religious school and the right to have children receive German language instruction. Others involved the right to marry, not be sterilized, and obtain contraceptives. But Roe was dealing with what it termed 'potential life' and none of the other rulings addressed this. Roe made a ruling based upon weights of respective interests, lessons and examples of medical and legal history, leniency at common law (which the basis of the articles it relied upon have been shown to be false), and the demands of profound problems. The first trimester ruled states had no ability to regulate for a women's health. Yet in other areas of medical and scientific uncertainties, the court had, and continues, to defer to legislatures.
Some have argued it comes to viability or characteristics of a person. Though some have listed self-awareness, the ability to reason, or sentience. This would creates issues in that some young children or those with developmental conditions would not qualify to be protected. Others view viability differently, in a way that could change over time. In the 19th century, viability may have not occurred until 32 weeks. Today the line may be drawn at 23 weeks. So does this change over time. By the way, only the US and the Netherlands use viability, other western democracies regulate the entire pregnancy.
Even those who agreed with the outcome of Roe, agreed that it was not constitutional law and that it gave no sense of trying to be. Even Ruth Bader Ginsburg said that Roe was a faulty decision. She felt it was too far-reaching and too sweeping. She would have preferred that abortion rights be secured more gradually, and that it include state legislatures. During the time between Roe (1973) and Casey (1992), there were 5 challenges requested the Court to overturn Roe. In Casey the court was again ask to overturn Roe, and return the decision to the people through their legislatures.
Casey pretty much tossed most of Roe for when an abortion was legal and the basis under the Constitution. Roe based the right to privacy, but Casey felt it fell under the 14th Amendments Due Process Clause. Casey set out new rules for legality, including substantial obstacle. It presented multiple vague terms that conflict with one another and provide no clarification for when an abortion is legal and when it is not. In order to determine if something is a substantial obstacle the court must know which set of women it should consider and how many of them must consider it a substantial obstacle. There are a multitude of issues, including but not limited to, place of residence, financial resources, family situation, work and personal obligations, knowledge of fetal development and abortions, psychological disposition, emotional disposition, and firmness of desire for an abortion. If the courts were to look at the average women across the United States, this would be very different than the average in a particular state or city. Since this created a federal rule, it would seem average across the United States. However there was no further guide set. If instead we look at the average across a state where a law is imposed, states still may have issues. Even small states where the differences between those in one portion versus those in another may create issues. Even in the Casey case the justices did not agree in applying their own rules. The controlling opinion found a 24 hour waiting period was not an undue burden, yet Justice Stevens applied their test and found that it did. Chief Justice Rehnquist dissented as well finding that the new rule provided nothing more workable than Roe had previously provided.
Later in Whole Woman's Health the court used a cost-benefit interpretation, saying the burdens of a law need to be considered along with the benefits it confers. But a mere five years later, the court rejected that interpretation in June Medical in a 5-4 decision. So 4 justices agreed with the cost benefit, but 5 felt that Casey had not set out those rules. Or perhaps in reality the later courts were not willing to continue an ongoing legislation from the bench approach. The list of conflicts in the circuit courts over the Casey rules has been substantial. Disagreements have surrounded legality of parental notification rules, bans on certain dilation procedures, the time needed to reach a clinic, and whether regulation regarding a fetus's race, sex, or disability matter. The appellate courts have had difficulties resolving the issues, often times reaching unpredictable results and have candidly outline Casey's many problems. Memphis Ctr for Reproductive Health v Slatery, 14 F. 4th 209 and Preter-Cleveland, 994 F.3d 524 (2021), Planned Parenthood of Ind. and Ky, 888 F.3d, 313; Planned Parenthood of Ind. and Ky, Inc. v Box, 949 F.3d 997. Continuing to adhere to the Casey standard is like saying go ahead and give it a try. It is not providing a consistent standard that is predictable and can be followed long term.
Their disruptive effect on other areas of law. Abortion cases have diluted the Supreme Court's strict standard for constitutional challenges. See United States v Salerno, 481 U.S. 739. They have ignored third party standing doctrine. See Warth v Seldin, 442 U.S. 490 and Elk Grove Unified School Dist v Newdow, 542 U.S. 1, with June Medical, 591 U.S. 28 and Whole Women's Health, 579 U.S. 4. 'They have fluted the ordinary rules of the severability of unconstitutional provisions,' and 'the rule that statutes should be read where possible to avoid unconstitutionality.' They have distorted First Amendment doctrines. See Sternburg v Carhart, 530 U.S. 914, Hill v Colorado, 530 U.S. 703. The courts continued exceptions to longstanding background rules means it fails stare decisis, the very thing it purports to uphold.
The absence of concrete reliance. In Casey, the court conceded 'traditional reliance interests were not implicated because abortion is generally an unplanned activity and reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions. Instead Casey relied upon 'organized intimate relationships,' choices that allow reliance on abortion in the event that contraception failed, and the 'ability of women to participate equally' and control their reproductive lives. 'The contending sides in this case make impassioned and conflicting arguments about the effects of the abortion right on the lives of women.' Attempting to weight the relative importance of the fetus and that of the mother is a departure from the original constitutional proposition that 'courts do not substitute their social and economic beliefs for the judgment of legislative bodies'. As well they should not because imagine the havoc that could erupt if they were to do so.
Overturning the prior decisions of Roe and Casey turns the power back to the people through their legislatures. Women today do not lack electoral or political power. People everywhere can lobby legislatures of their state, vote or even run for office. The number of women registered to vote and actually vote is consistently higher than the number of men.
Those concerned with other issues being overturned because of this forget that the court in Casey mentioned that abortion was unique in that it terminates 'life or potential life'. This makes it inherently different from marital intimacy, marriage or procreation. And the court states that this concerns only the constitutionality of the right to abortion. There is a concern that confidence in the court, for overturning a watershed issue like Roe, could be shaken. However, this does not mean that the Court should overstep it's scope of authority or have their decisions affected by extraneous influences. In the words of Chief Justice Rehnquist, 'The Judicial Branch derives its legitimacy, not from following public opinion, but from deciding by its best lights whether legislative enactments of the popular branches of Government comport with the Constitution. The doctrine of stare decisis is an adjunct of this duty and should be no more subject to the vagaries of public opinion than is the basic judicial task.' (in Casey) Casey even stated it was attempting to end national division. Stare decisis is the norm but not an 'inexorable command.' To be otherwise matters like Plessy and Lochner, mentioned earlier, would still be law. This is not how it operates.
Rather than ending division, Roe and Casey seemd to fan the flames. R.B. Ginsburg in Speaking in a Judicial Voice, 1992 New York University Law Review, 'Roe may have halted a political process, prolonged divisiveness, and deferred stable settlement of the issues.' Casey was no improvement. In the matter before the Court 26 states have ask that Roe and Casey be overturned, and that the issue be returned to the people and their elected representatives. The matter cannot be ended with raw judicial power. The court holds that the Constitution does not confer a right to abortion, and it overturns Roe and Casey.
How can laws be challenged in the future.
For challenges to state law, what standard will be used for review. A rational-basis review will be used since there is no fundamental right to abortion in the Constitution or the Nation's history. Challenges made to state laws will not allow courts to substitute their social and economic beliefs for the judgment of the legislative bodies. Law regarding abortion, like other health and welfare laws, is entitled to a 'strong presumption of validity'. In the matter before the Court, Mississippi's Gestation Age Act prohibits abortion at greater than 15 weeks except in a medical emergency or in the case of severe fetal abnormality. The Court finds that the State's interest, as stated in the Legislature's findings, to protect the life of the unborn, that post 15 week abortion used dilation and evacuation procedures that were non-therapeutic, dangerous to the patient and demeaning of the medical profession sufficient to provide a rational basis for the act. Therefore the constitutional challenge fails. The judgment of the Fifth Circuit is reversed and the matter is remanded.
Webpage created by and for J.B. Williams, J.D. - all rights reserved