Whither Roe v. Wade?

The Supreme Court’s 1973 decision in Roe v. Wade has divided Americans for almost half a century.  Politically, it created a gulf between anti-abortion, socially-conservative Republicans Americans and pro-abortion, socially liberal Democrats Americans, a gulf that has continued to widen.  Dialogue between the two does not exist because the two positions are irreconcilable  The consequence for many Americans is that abortion rights are a defining social and political question, a matter of life-or-death, and therefore a single-issue determinant.  They vote exclusively for a candidate based on the candidate’s social and/or religious beliefs on abortion rights and accordingly, on his or her willingness to support the appointment of Supreme Court justices who will reflect their abortion view.

Roe v. Wade established a woman’s right to abort an embryo, a fetus, an unborn child.  The Court characterized that right as an individual’s right to privacy under the Constitution …, and caveated that right by requiring that a woman’s right to privacy must be balanced against the government’s interest in protecting a mother’s health, maintaining appropriate medical standards, and protecting the life of the fetus.  In doing so, the Court wrestled with the question of when a fetus becomes a “person” subject to protection under the Constitution … a “living being.”  At the time Roe was decided, the Court recognized the three trimesters of pregnancy as appropriate dividing lines.  Drawing on then-existing medical knowledge, the Court held that a State could impose whatever measures it deemed appropriate to prohibit abortions during the third trimester … other than when doing so would put a mother’s life at risk.  It also held that no restriction could be placed on a woman’s right to abort a fetus during the first trimester … other than to impose minimal medical safeguards such as requiring a licensed physician to perform the surgical procedure.  During the second trimester, the Court ruled that a State could regulate the abortion procedure in ways “narrowly tailored” to protect a mother’s health.

And there the law stood for 47 years.  It is now expected to be relitigated … and, possibly, reversed.

Sowing that expectation was President Trump’s campaign promise that, once elected, Roe v. Wade’s reversal would “happen automatically … because I am putting pro-life Justices on the Supreme Court.”  Which he did.  When presented with two Supreme Court vacancies, he nominated (and the Senate confirmed) Neil Gorsuch and Brett Kavanaugh.  He now has nominated Any Coney Barrett to a third open seat on the Court.  Each of the three has vocally expressed opposition to legalized abortion.  Supreme Court-watchers believe that their appointments create the very real possibility of reversal … and the near-certainly of carve-downs from Roe’s sweeping precedent.

And, yet … it’s far from clear whether that belief is justified.  All nine Supreme Court justices are excellent jurists with records of well-reasoned decision-making.  There are well-established judicial principles that ought to govern their decision-making process.  Foremost is that, once the Supreme Court has decided a case, the legal principle it has adopted should not be revisited.  This is especially important in decisions interpreting the Constitution.  Derived from centuries of English common law, the legal principle is known as stare decisis. requiring courts to treat prior decisions as binding legal precedents in deciding subsequent cases … even if they disagree with the prior decision.  Concluding that a prior decision was wrong – and needs to be discarded – means that those who relied on it – including those who structured their lives or their businesses in reliance on that decision – would have to readjust, often with adverse personal, social and/or economic consequences.  Legal predictability is essential in a fully-functioning democracy.  Legal stability, the consistency of application and enforcement, is a vital element of the Rule of Law and therefore an integral component of a fully-functional national society.  That is why courts have required a special justification to overcome the presumption that favors upholding precedent and why legal scholars agree that overruling what is arguably an “incorrect precedent” should occur only when necessary to rectify an egregiously wrong or unworkable decision or to account for changes in society’s understanding of the facts underlying a legal issue.  For example, the Supreme Court’s reversal of its 1896 “separate but equal” decision upholding segregation – Plessy v. Ferguson – required the global perspective (and national identity) created by two World Wars and, even then, took almost 60 years of consensus-building.  The national recognition of its inequities required culminated in a 9-0 Supreme Court reversal of Plessy, which created enormous social and political tensions.  Brown v. Board of Education of Topeka ushered in an era of integration … and upheaval.  Roe v. Wade was decided by a 7-2 majority.  With the Trump era appointment of three anti-abortion justices, Court-watchers anticipate a 6-3 majority in favor of reversing Roe.  That raises the additional question of whether stare decisis should be ignored without a super-majority supporting reversal.

Polls over the past two decades indicate that Americans remain divided on the question of abortion with most polls suggesting that ~47% of Americans are pro-choice and ~47% are anti-abortion/pro-life (with most polls also showing a substantial majority opposed to overturning Roe).  However, a number of State legislatures nevertheless favor, and have legislated the imposition of, severe limitations on the abortion rights granted by Roe v. Wade.  Some have placed burdensome restrictions on abortion counseling and processes, others have outlawed abortion after the first trimester, and others have simply enacted laws that in practice outlaw abortion.

Have the times changed … and will the Supreme Court be changing with those times?

Those legislators and governors whose continuation in office requires the support of pro-life voters have become active challengers of the Supreme Court’s decision in Roe v. Wade.  They have taken the President’s statements and the appointments of Justices Gorsuch and Kavanaugh as a license to enact laws in outright defiance of the law Roe v. Wade, priming the judicial pump by challenging the legal meaning and enforcement of established Supreme Court precedent.  Examples can be found most prominently in Louisiana, Georgia, Ohio, Mississippi, and Kentucky, which have banned abortions when an ultrasound scan can detect a fetal heartbeat (which generally is within 6-8 weeks after conception); Missouri has prohibited abortions 8 weeks after conception; Utah and Arkansas prohibit abortions after 18 weeks; an Ohio law would ban abortions when the reason is a fetal diagnosis of Downs Syndrome; and Alabama has banned all abortions and provided criminal sentences of up to 99 years for those who perform them.  The purpose of each such law is to frame for judicial reconsideration the same question … and all are winding their way through the District and Circuit Courts with the goal of finding support at the Supreme Court.

In the 47 years since Roe v. Wade, medical science has made advances in improving the viability of fetuses; however, those advances have been incremental, increasing the odds of survival without ensuring it or significantly reducing the incidence of major disabilities.  The 24-28 week third-trimester standard adopted by Roe v. Wade therefore correctly delineates the time when modern medicine has determined that a “compelling state interest” should require scrutiny into whether protection of an unborn fetus’s life is appropriate.  Stated a bit differently, medical science has not materially changed the odds of survival for pre-third trimester fetuses.  Viability of fetuses prior to the third trimester remains a medical challenge.

On the other hand, doctors no longer need to intercede to safely terminate a pregnancy.  There no longer are minimal medical safeguards that require a licensed physician to perform an abortion procedure.  Medical science has developed drugs that render physician abortion procedures unnecessary during the first 10 weeks of pregnancy … and longer.  The Federal Drug Administration first approved the use of mifepristone and misoprostol in 2000, after 13 years of successful use in Europe (Mifeprex is the brand name).  Mifepristone blocks the effects of progesterone, the pregnancy-enabling hormone, and misoprostol induces contractions.  At the time Mifeprex was approved by the FDA, there was limited experience with its use and effects.  The FDA therefore mandated that doctors and clinics be certified to prescribe the drug, and women were required to physically visit a clinic, medical office, or hospital to obtain it, rather than filling a prescription at a pharmacy.  A 2019 article in The New England Journal of Medicine advocated lifting the restrictions on Mifeprex.  It is currently included in a list of “risky drugs” along with antipsychotic medications and narcotics.  The additional 19 years of experience in the U.S. and Europe has indicated that side effects from Mifeplex are reasonably minimal and similar to other non-restricted prescription drugs, and that continuing restricted distribution is unnecessary.  There is a widespread understanding that political pressure has led the FDA to take the opposite tack …, and confirmation of that understanding arose during the current pandemic.  When Covid-19 created the need for virtual doctor visits, the FDA refused to permit Mifeprex to be prescribed other than during a physical visit to a doctor and refused delivery to be made available other than by an in-person pick-up …, even though patients swallow the pill at home without physician participation or oversight … or the need for it.  The FDA’s Mifeplex-specific restriction resulted in a lawsuit led by the American Civil Liberties Union.  In July, a Federal district court issued a temporary injunction enjoining the FDA from enforcing its restriction and permitting virtual doctor visits and mail-order delivery of Mifeprex based, in part, on the fact that the FDA requirement imposes unnecessary Covid-19 risks by compelling patients to travel to a clinical setting solely to pick-up the drug and sign a form.  The Supreme Court has refused to overturn that injunction, with the deciding vote being cast by Chief Justice Roberts based solely on the basis of stare decisis – his view to the contrary had been clearly expressed in a prior dissent.  The district court injunction therefore will remain in force until at least 30 days after the Federal government ends the Covid-19 public health emergency.  Despite the view of medical professionals expressed in The New England Journal of Medicine, it is unlikely that the Trump Administration’s FDA will then reconsider the pre-existing restrictions placed on Mifeplex..

The permitted use of Mifeprex has been controversial since it was first prescribed in France in 1987.  Mifepristone was initially known as RU-486, “the abortion pill,” and its use was vilified by right-to-life advocates.  Wikipedia states that, in combination with misoprostal, it “is 97% effective during the first 63 days of pregnancy [and] also is effective in the second trimester of pregnancy.”  That is, it is a far less-expensive, easier, more private, and safe and effective alternative to physician-performed abortions.

The legal and regulatory assault on Roe v. Wade is about more than abortion rights and political will.  It’s a Constitutional challenge.  It raises any number of legal, political and Federalist vs. States’ Rights questions, including whether State governments can indirectly contest assault Supreme Court decisions and thereby undercut Constitutional precedent.

Whether or not such weapons-of-Constitutional-destruction were intended to be granted by the Founders – a question that strict constructionists would find easy to answer –, it is now clear that the Supreme Court will be asked to re-decide Roe v. Wade either piece-by-piece … or wholesale.  The enactment by States of laws that are inconsistent with Supreme Court precedent creates precisely the type of uncertainty States’ Rights conflict that inflames partisanship, further divides Red and Blue States, and further undermines the efficacy of the American Democratic Experiment.  Whether or not validated, laws designed to chip away at the Constitutional authority of the Supreme Court are likely to result in a fracturing of the “United” States.  Once each State enacts its own abortion laws – as many now are doing –, its own environmental laws – as a few now are doing –, and its own gun laws – as all already have done –, the concept of a “Federal government” speaking with a single national voice significantly disappears.  Instead of priding itself on social cohesion, geographical mobility based on that cohesion, and a strong centralized Federal governmental system, America is bifurcating.  Americans will migrate accordingly.  The decision in Roe v. Wade states the Constitutional definition of when life begins.  It protects each American “life” accordingly …, but it’s more than that.  It’s an affirmation that America is one country.  Overruling Roe v. Wade therefore is not about whether the Supreme Court’s 1973 decision was correctly decided.  The fact is that a great many legal scholars (as well as TLR) believe that the Court erred in its decision …, but that the decision should stand absent an overwhelming public desire for change.  If the Court should discard Roe v. Wade and hold that life begins at conception (for example, on the liberal principle that the Constitution is a “living instrument,” subject to reinterpretation at times and from time-to-time), that would pit pro-abortion and anti-abortion Americans at each other’s throats.  On the other hand, should the Court adopt the reasoning of the two dissenters in Roe (White and Rehnquist), it would bifurcate the Union into Red and Blue States, with each State determining abortion rights for itself. Therein lies a tale of two weakened countries an irrevocably weakened America.

Since the Great Depression, American Presidents, legislators and judges, together with their State brethren, have been scrupulous in upholding their artful interpretations of the Constitution.  They have put aside partisanship when the American system was threatened during times of crisis, whether during the Vietnam War, Watergate, runaway inflation, 9/11 terrorism, or the Great Recession.  They understood the need for putting the interests of America ahead of their political and personal interests self-restraint.  They were well-aware that playing fast and loose with the system of government that had made America great the most stable and durable democracy in history could undermine all that had been so-painstakingly patched together by the Founders and sustained for more than two centuries.  The question today is whether the American Rule of Law and its Constitutional system will continue to support America’s democracy.

Finally (from a good friend)

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