Blog No. 291. The Supreme Court and Abortion

Earlier this month, the Supreme Court agreed to review Dobbs v. Jackson Women’s Health Organization. In that case, the Fifth Circuit Court of Appeals held invalid a Mississippi law banning all abortions after fifteen weeks, except in cases of medical emergency or severe fetal abnormality. The petition for certiorari in Dobbs was considered by the Court at numerous private conferences, over a period of several months, before it was finally granted. Acceptance of the case required the vote of at least four justices, but how each justice voted was undisclosed (as it always is, unless a justice elects to file an opinion on the grant or denial.

The willingness of the Court to take the case has given rise to wide-spread commentary suggesting that it may lead to the overruling of Roe v. Wade or, more accurately, Planned Parenthood v. Casey. Although Roe v. Wade remains dominant in the popular lexicon, reference to Casey is more accurate because Roe has not been the controlling precedent since it was significantly modified by Casey in 1992.

I have previously made clear my own perspective: I understand and respect, but do not share, the views of those who reject all or almost all abortions on moral grounds and those who find no legitimate constitutional basis for protecting abortion rights. In short, I am “pro-choice,” I believe that Casey is a sound precedent, and I hope it will survive the current review at least in part. I will not attempt to persuade anyone of my views in this blog, but I thought it might be of interest to review some of the history of abortion in the Supreme Court that has brought us to where we are today.

The story of abortion in the Supreme Court begins with a case that involved not abortion, but contraception. In 1965, Griswold v. Connecticut took up a Connecticut statute that imposed criminal penalties upon the sale or use of contraceptive devices, and had been applied to the sale of such devices to married couples. The Court found the law to be an unlawful violation of a constitutional right to privacy. Although no right to privacy as such is expressed in the constitution, Justice William O. Douglas concluded that a right to marital privacy fell within the “penumbras” formed by “emanations” from various specific guarantees in the Bill of Rights. Emphasizing the sanctity of marriage, he found a zone of privacy implied by cases such as those involving the freedom of association under the First Amendment, and the protection of the Fourth Amendment against warrantless searches of the home.

Although the Griswold decision was criticized by some academics, it did not provoke much heated controversy because many of those who disagreed with its reasoning probably agreed with Justice Potter Stewart, who had acknowledged, even in dissent, that the challenged law was “uncommonly silly.” In a 1972 case, the Court went beyond Griswold to hold invalid a Massachusetts statute prohibiting the sale of contraceptive devices except by prescription to married persons. An opinion of the Court by Justice William Brennan held that the right to privacy inheres in the individual, not married couples. That decision set the stage for Roe v. Wade in which the plaintiff was an unmarried woman.

In Roe, Justice Harry Blackmun relied on the right of privacy articulated in Griswold to find a constitutional right of a woman to obtain an abortion. He went on to establish a trimester framework under which a) virtually no regulation by the state was permitted in the first trimester; b) regulation during the second trimester was permitted to protect the woman’s health (but not to further the State’s interest in potential life); and c) during the third trimester, when the fetus would be viable, the state might bar an abortion, but only when the prohibition would not endanger the life or health of the mother.

When Roe was decided, abortion had not become a political issue, let alone a staple of partisan politics. Blackmun, a Republican, was joined by Republicans Chief Justice Warren Burger, and Justices Potter Stewart and Lewis Powell, as well as Democratic Justices William O. Douglas, William Brennan, and Thurgood Marshall; dissents were filed by Justices Byron White, a Democrat, and Republican William Rehnquist. In the years following Roe, however, and as its holding was applied in numerous cases to strike down laws regulating or restricting abortion, abortion became a major political issue.

By the time Casey came to the Court in 1992, powerful political movements had developed on both sides of the issue, largely on partisan lines. Republicans were overwhelmingly critical of Roe, calling for it to be overturned, and Democrats were equally unified and passionate in its defense. At the same time, the composition of the Court had changed in ways that made conservatives optimistic (and liberals fearful) that Roe would be overturned. Chief Justice Burger and Justices Douglas and Powell had retired; William Rehnquist had become Chief Justice; and Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy, and David Souter had joined the Court. The Court now appeared to be significantly more conservative. 

Casey involved a challenge to a Pennsylvania statute that regulated abortions in several respects. It included provisions that: required a married woman to notify her husband of her intention to seek an abortion; specified information be provided to her, including the “probable gestational age of the unborn child” as well as information about alternatives to abortion; delayed abortion for a 24-hour waiting period; required a minor to to obtain consent of one parent, subject to a judicial bypass; and imposed record keeping and reporting requirements on facilities performing abortions. Planned Parenthood challenged each of the requirements, citing Roe v. Wade, and subsequent cases striking down a variety of similar state laws. Casey, however, would put in issue not only the interpretation of the latter precedents, but also the continued validity of Roe itself.

Casey produced a joint opinion by Justices O’Connor, Kennedy and Souter—all Republican appointees—that upheld all of the restrictions of the Pennsylvania law except the requirement for spousal notification. Although upholding most of the law, and modifying Roe in major respects, it expressly reaffirmed the existence of a constitutional right to an abortion:

[T]he right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure.

As a result of Blackmun’s reliance on a right of privacy in Roe, it has been closely identified with the right to an abortion. Indeed, the two rights are still often linked in public discussion.  But it was never an entirely comfortable fit. And unlike Blackmun’s decision, the joint opinion in Casey cited Griswold, but made no reference to a “right of privacy.” Rather, it found the right to an abortion within the concept of liberty protected by the 14^th Amendment. The reformulation, generally attributed to Justice Kennedy, was unpersuasive to critics of Roe or advocates of an “originalist” interpretation of the constitution. However, some scholars, including Laurence Tribe, believed that it put the right to on an abortion on a firmer constitutional footing.

The portion of the Casey joint opinion attributed to Justice O’Connor abandoned the trimester formula that Roe had adopted. In its stead, the joint opinion held that abortion regulations would be held invalid only if they placed an “undue burden” on a woman seeking an abortion. It was a standard that Justice O’Connor had urged on several previous occasions, but one which arguably added flexibility at the cost of clarity. In practice, Justices might well disagree as to what constituted an undue burden; in any case, however, it was clear that regulations that would have failed the Roe standard might well be considered not to impose an undue burden, and therefore, be upheld.

Specifically, the joint opinion rejected the holding of Roe, embodied in the trimester formula, that virtually no regulation of abortion was permissible during the first trimester. Rather, it held that the interest of the State in the preservation of potential life begins at conception and that, even prior to viability, the State is entitled to “express a preference for childbirth.” Thus it overruled prior decisions that had held unconstitutional statutes requiring women to be given specified information if the information was “designed to influence her choice.”

In striking down the requirement of spousal notification, the opinion relied heavily on detailed factual findings of the District Court which had demonstrated that, in many cases, notice to a husband would risk physical or other abuse of the woman. In such cases, the notice requirement clearly created a serious obstacle to the obtaining of an abortion. The joint opinion acknowledged that a husband had a legitimate interest in his wife’s pregnancy, but concluded that it did not justify placing him in a position of authority that might be tantamount to a veto.

The joint opinion emphasized that it was far from a personal endorsement of abortion:

Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.

That disclaimer was particularly important to Justice Kennedy, a devout Roman Catholic, for whom abortion was a personal anathema.

The writers of the joint opinion also expressly declined to assert that Roe v. Wade had been correctly decided, even as to the “central holding” that Casey now preserved:

We do not need to say whether each of us, had we been Members of the Court when the valuation of the State interest came before us as an original matter, would have concluded, as the Roe Court did, that its weight is insufficient to justify a ban on abortions prior to viability even when it is subject to certain exceptions.

That reservation served to emphasize the crucial importance of stare decisis—respect for precedent—to the Casey decision. The portion of the joint opinion concerning stare decisis, attributed largely to Justice Souter, offered a lengthy and detailed explanation of the principle and its application to Casey. Souter began by enumerating the factors that supported the application of the principle: a) that Roe had not proven to be unworkable; b) that people had organized their lives “in reliance on the availability of abortion in the event that contraception should fail”; c) that the evolution of legal principles had not eroded the “doctrinal footing” of Roe; d) that the factual premises of Roe had not changed (except with respect to the trimester formula).

The opinion went on to give special consideration to the case as one that lay at the center of a national debate. From that perspective, it contrasted the abortion issue with the issues in two earlier cases that had also involved great controversy and in which the Court had reversed long-standing precedents. In both cases, the joint opinion urged, the reversal had been supported by a change in “facts that the country could understand, or had come to understand already.” Souter concluded with an impassioned argument that to overrule Roe v. Wade “under fire,” and in the absence of a compelling change in circumstances would seriously undermine the legitimacy of the Court and the public respect that is essential to its very ability to function. In that fashion, the zealous advocacy of groups opposed to Roe v. Wade had ironically become a linch-pin in its preservation.

In dissent, Chief Justice Rehnquist, wrote an opinion joined by Justices White, Scalia and Thomas. He argued, as he had 19 years before in Roe itself, that there was no “fundamental” right to an abortion. The reliance of the joint opinion on stare decisis provoked scathing responses from the Chief Justice and Justice Scalia. Both Justices attacked the opinion for what they saw as a novel and unprincipled use of stare decisis: to retain portions of a decision while discarding others. According to Rehnquist, “Roe continues to exist but only the way a storefront on a western movie front exists: a mere façade to give the illusion of reality.” 

Nearly twenty years passed between Roe v. Wade and the decision in Casey, and thirty more years will have passed before the Court decides Dobbs v. Jackson Women’s Health Organization. The composition of the Court is, of course, radically different. The Justices who are considered certain to vote to uphold Casey, are Stephen Breyer, Elena Kagan and Sonia Sotomayor. Casey is at greatest risk of total repudiation from Justices Clarence Thomas and Samuel Alito, and, perhaps Neil Gorsuch and Amy Coney Barrett; Chief Justice John Roberts and Brett Kavanaugh, it is believed, might limit Casey in some fashion, but stop short of overruling it.

It may be noted that the six justices likely to overrule or limit Casey, are Roman Catholics or, in the case of Justice Gorsuch, were raised in that faith. It may, however, be unfair to suggest that a decision of those justices in an abortion case flows directly from their religion. A preferable explanation may be that they all rose through the ranks of the Republican Party, where an anti-abortion stance has become an overriding secular command. (Among the supporters of Casey on the Court, Justice Sotomayor is Roman Catholic who, like Justice Kennedy, has been able to separate her religion from her jurisprudence.)

In Dobbs, the strongest defense of a constitutional right to an abortion may be found—as it was in Casey—to lie in the doctrine of stare decisis. In confirmation hearings, nominees have, in varying degrees, expressed respect for Casey and Roe as precedents. Most notably, Justice Kavanaugh obtained the crucial support of Senator Susan Collins for his confirmation by persuading her that those precedents were safe. According to Collins, “He said under oath many times, as well as to me personally many times, that he considers Roe to be ‘precedent upon precedent’ because it had been reaffirmed in the Casey v. Planned Parenthood case.” Yet stare decisis is a questionable sanctuary.

It seems quite unlikely that the Court agreed to review Dobbs for the purpose of reaffirming Casey. Moreover, observers have noted the willingness of the Roberts Court to depart from precedent in a variety of areas. In 2019, Laurence Tribe wrote:

The Roberts Court has increasingly tended to treat long-established precedent as entitled to no special respect.

and

To take such a dismissive stance toward precedent is to empty it of all significance, treating every issue confronting the court as though it were a matter of first impression. That kind of judicial muscle-flexing is potentially lethal to the credibility of the Supreme Court as the least overtly political civil institution of our government.

Justice Kavanaugh’s recent willingness to depart from precedent has occasioned particular comment. (See, e.g. Ian Millhiser, “Brett Kavanaugh’s latest decision should alarm liberals.”)

Nevertheless, one factor that might lead the Court to act with caution would be a reluctance to propel the institution further into the political arena. Chief Justice Roberts, in particular, is well known for attempting to insulate the Court from partisan politics, a quest that has become increasingly difficult. Already, pressure from progressives has led President Biden to appoint a commission to consider possible changes in the structure of the Court. While it is unlikely that any report from the commission will lead to action in the near future, an overturning of Casey would add fuel to the fire. Roberts surely does not want the Court to become a centerpiece in the bitter campaigns to be fought for the 2022 Congressional elections. Still, it remains to be seen how influential his instinct to protect the institution will be.