The Supreme Court may undo Roe v. Wade—if a majority can agree on the right reason
The wave of anti-abortion legislation passed by states in recent weeks is targeted to force the Supreme Court to reconsider Roe v. Wade (1973), which first declared a constitutional right to abortion, and Planned Parenthood of Southeastern Pa. v. Casey (1992), which affirmed and redefined that right. But before analyzing the likelihood that Roe v. Wade will be overruled, let us review the current status of abortion rights.
A brief history of Supreme Court precedent
Roe v. Wade’s 7-to-2 decision struck down state laws that criminalized abortion except to save a pregnant person’s life. The majority decision, written by Harry Blackmun, relied on a line of cases that affirmed rights not specified in the Constitution. Justice Blackmun wrote, “going back perhaps as far as Union Pacific R. Co. v. Botsford (1891)...the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.”
The Union Pacific case held that a court could not order a litigant who was an accident victim to undergo surgery to determine the extent of her injuries. The opinion stated, “[n]o right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person.”
The majority in Roe v. Wade relied, in part, on a case that determined married couples have a constitutional right to use contraceptives.
To justify the assertion that this constitutionally protected right to privacy “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy,” the majority in Roe v. Wade also relied on Pierce v. Society of the Sisters (1925), which upheld the right of parents to send their children to religious schools, and Griswold v. Connecticut (1965), which determined that married couples have a constitutional right to use contraceptives.
The Roe v. Wade majority also addressed the status of the unborn and the government’s interest in protecting both maternal and fetal health. On fetal personhood, the court stated that none of the uses of the word “person” in the Constitution “indicates, with any assurance, that it has any possible pre-natal application.” The court further held:
With respect to the State’s important and legitimate interest in the health of the mother, the “compelling” point, in the light of present medical knowledge, is at approximately the end of the first trimester. With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb…. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.
Roe v. Wade did not end the abortion debate. States passed new abortion-related laws prohibiting specific procedures and imposing facility standards, waiting periods, spousal notification and parental consent requirements. The courts were called upon to determine the constitutionality of each new restriction, and their decisions revealed the limitations of Roe v. Wade’s trimester analysis.
Nineteen years later in the Casey decision,involving notification, consent and medical facility restrictions, the court conducted a wholesale review of Roe v. Wade. In a 5-4 opinion co-authored by Justices Sandra Day O’Connor, Anthony Kennedy and David Souter, the court affirmed “that viability marks the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions” and declared that an “undue burden” test should be used to judge the constitutionality of pre-viability abortion laws.
This test has prevailed ever since.
The current court
None of the justices who decided Roe v. Wade are still on the court, and only Clarence Thomas was there when it decided Casey. In that case, Justice Thomas joined then-Chief Justice William Rehnquist’s dissenting opinion and voted to overturn Roe v. Wade. He has stood by this analysis throughout the years.
Four current justices—Ruth Bader Ginsburg, Stephen G. Breyer, Elana Kagan and Sonia Sotomayor—have made it equally clear that they would uphold the right to terminate pregnancies in accordance with the precedent established in Roe v. Wade and Casey. Interestingly, in her dissent to Gonzalez v. Carhart (2007) (5-4), the case that upheld a federal partial-birth abortion ban, Justice Ginsburg framed her endorsement of abortion rights in equal protection rather than privacy terms: “legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.” Still, Justice Ginsburg did not suggest that the “Roe-Casey line of precedent” should be overruled.
Justice Ruth Bader Ginsburg has framed her endorsement of abortion rights in equal protection rather than privacy terms.
Justice Breyer joined in Justice Ginsburg’s dissent in Gonzalez v. Carhart and authored the court’s decision in Whole Woman’s Health v. Hellerstedt (2016) (5-3), which struck down Texas’s admitting privileges and abortion facilities requirements. Without reservation or discussion, Justice Breyer began by affirming precedent as pronounced in Casey. Justices Ginsburg, Sotomayor and Kagan (and then-Justice Kennedy) joined in this decision.
The remaining four justices—Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito, Neil Gorsuch and Brett M. Kavanaugh—have never, as jurists, expressly rejected Roe v. Wade or Casey.
Chief Justice Roberts and Justice Alito were on the court in 2007 and voted to uphold the federal partial-birth abortion ban in Gonzalez v. Carhart, but they chose not to join Justice Thomas in his concurring opinion, which reiterated his view that “the Court’s abortion jurisprudence, including Casey and Roe v. Wade… has no basis in the Constitution.”
The newest members of the court, Neil Gorsuch and Brett M. Kavanaugh, have not had many occasions during their time on the bench to express their views on abortion, but they both passed on an opportunity to denounce Roe v. Wade and Casey when they voted in June Medical Services, LLC v. Gee (2019) and Box v. Planned Parenthood of Indiana and Kentucky, Inc. (2019). June Medical concerned Louisiana’s request for a stay from a lower court injunction against the state’s abortion facilities law. Both justices, along with Chief Justice Roberts and Justice Alito, voted to grant the stay, which could indicate they disfavor abortion rights, but Justice Kavanaugh’s dissenting opinion (the majority denied the stay) applied the undue burden test. He may have done this grudgingly because, as he noted, “[a]ll parties, including the State of Louisiana, agree that Whole Woman’s Health is the governing precedent for purposes of this stay application.” Still, his reliance on existing abortion jurisprudence without negative comment is noteworthy.
Challenges from new state laws
Thus far, Alabama is the only state to attempt criminalizing abortion during all stages of pregnancy, with an exception to prevent a pregnant person’s death or “serious risk of substantial physical impairment of a major bodily function.” Other states, including Ohio, Kentucky and Georgia, have enacted laws that, if they were to pass constitutional muster, would criminalize abortion at six or eight weeks gestation; this is well before Casey’s viability threshold and often before a person knows she is pregnant.
Lower courts hearing challenges to these laws have enjoined them as unconstitutional under existing precedent, but if four Supreme Court justices vote to grant a writ of certiorari to review one of these pre-viability abortion ban cases, the entire court will be forced to examine several essential questions:
- the extent that stare decisis, a legal principle that constrains courts from issuing decisions inconsistent with precedent, applies to the court’s abortion decisions;
- whether pregnancy should be treated as a unique condition or analyzed similarly to other personal liberty or equal protection interests; and
- the appropriate standard that should be used to balance a pregnant person’s rights with the government’s right to protect life and regulate medical procedures.
Precedents for striking down precedents
The Roberts Court has not been shy about overruling other longstanding precedents, or breaking with stare decisis. In 2009, Chief Justice Roberts wrote a concurring opinion in Citizens United v. Federal Election Commission that overruled a previous decision so that corporations could be granted full First Amendment free speech rights. The chief justice wrote, “[w]hen considering whether to reexamine a prior erroneous holding, we must balance the importance of having constitutional questions decided against the importance of having them decided right.”
He then listed various criteria that can be used to overcome stare decisis:
when the precedent’s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases, when its rationale threatens to upend our settled jurisprudence in related areas of law, and when the precedent’s underlying reasoning has become so discredited that the Court cannot keep the precedent alive without jury-rigging new and different justifications to shore up the original mistake.
In Janus v. AFSME (2018), Chief Justice Roberts joined Justice Alito’s 5-to-4 majority decision to overrule a 1977 case and grant public employees the right to refuse to pay fees to unions that represented them in collective bargaining. Justice Alito wrote:
we recognize the importance of following precedent unless there are strong reasons for not doing so. But there are very strong reasons in this case. Fundamental free speech rights are at stake. Abood [the precedent case] was poorly reasoned. It has led to practical problems and abuse. It is inconsistent with other First Amendment cases and has been undermined by more recent decisions.
Finally, this past May, in Franchise Tax Board of California v. Hyatt, a 5-4 majority granted state governments immunity from suits filed by citizens in other states, overruling a 1979 case. Chief Justice Roberts and Justices Alito, Gorsuch and Kavanaugh joined a majority opinion authored by Justice Thomas, in which he questioned “the quality of the [prior] decision’s reasoning; its consistency with related decisions; [and] legal developments since the decision.”
The issues decided in each of these cases are quite different from abortion; and Casey, which specifically affirmed Roe v. Wade, as Justice Kavanaugh reportedly has stated, is “precedent on precedent.” Nevertheless, abortion opponents can cite the Citizens United and Janus decisions to argue that the Roe and Casey precedents have been “hotly contested” and have led to “practical problems.”
Abortion opponents can cite the Citizens United and Janus decisions to argue that the Roe and Casey precedents have been “hotly contested” and have led to “practical problems.”
At some point a case may come when a majority of the Court will decide, as it did in Casey, to directly address the constitutional underpinnings of abortion law precedent. At that time each justice will be obliged to give the “right” decision, as he or she sees it, and determine to what extent, if any, the Constitution protects the decision to terminate a pregnancy.
Justices Ginsburg, Breyer, Kagan and Sotomayor will undoubtedly determine that abortion is protected by the Constitution either as a fundamental right or under an equal protection analysis.
Justice Thomas already has decided that abortion is not a fundamental right. Under his analysis, the decision to terminate a pregnancy has the same protection as does the decision to drive a car as fast as one desires; and the government may limit that right for any reasonably related rational purpose.
Although not showing their hand with regard to abortion, Chief Justice Roberts and Justice Alito both dissented from the court’s decision in Obergefell v. Hodges (2015) (5-4), which determined the right to same-sex marriage. Their dissenting opinions indicate they would not recognize a right as “fundamental” unless specifically addressed in the Constitution or “deeply rooted in this Nation’s history and tradition.” As a circuit court judge, Justice Kavanaugh exhibited a similar reluctance to expand fundamental rights when he joined an opinion denying terminally ill patients a fundamental right of access to experimental treatment. And Justice Gorsuch, while on the Tenth Circuit, joined a decision (Brown v. Cooke) applying the same standard in a much more trivial case denying state recognition of a common-law name change.
Thus, it is possible that five of the current justices would overrule Roe-Casey precedent should the right case come before them. But it also is possible a majority would find a third way to analyze abortion rights that would recognize the seismic, irrevocable life-altering implications of motherhood while acknowledging the government’s interest in protecting unborn life. Such a compromise might require states to treat fertilized eggs outside the womb similarly to those in utero and provide medical and financial support to women and their children.
These results are unlikely, however, as the court is loathe to legislate remedies. Thus, should the court overrule Roe, Justice Antonin Scalia’s assessment will come true: “[t]he permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”