Wednesday, July 4, 2018
Like our law of slavery once was, abortion law in the United States today is a function of human positive law -- law that can be made and unmade by human will.
As a judicially constructed constraint on legislated protection of vulnerable human life, Roe v. Wade is particularly pernicious. With the upcoming change in the Supreme Court's composition, Roe probably will and definitely should be overruled even further than it already has been.
Recognition of this new likelihood is compatible with the observation that some of those trying to raise an alarm about "the reversal of Roe v. Wade" are engaged in disingenuous scaremongering. Abortion-friendly legal types have long known how election- and appointment-dependent their hold on abortion law has been, especially with respect to legal protections for life later in pregnancy. And that's where the upcoming judicial action will be.
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Although many believe that our constitutional law of abortion is all about Roe v. Wade, they are wrong. Planned Parenthood v. Casey is much more important.
Casey is the 1992 decision in which a majority of the Supreme Court partially overruled Roe while a plurality purported to preserve its "central holding." To accomplish this feat, the plurality developed a new take on stare decisis that Justice Scalia accurately described in dissent as a "keep-what-you-want-and-throwaway-the-rest version."
The Casey plurality discarded Roe's trimester framework and acknowledged the permissibility of post-viability abortion prohibitions. In place of Roe, Justices O'Connor, Kennedy, and Souter substituted an "undue burden" standard of review for laws limiting pre-viability abortions.
The Justices have sparred over application of Casey's undue burden standard ever since. That is unsurprising given how unstable a legal standard "undue burden" is in the culturally and politically fraught context of abortion law.
The identity of the Justices applying it has been the single variable most predictive of the results this standard delivers. That is exactly why it's no good for the impartial administration of law and needs to go.
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The most recent opinion for the Court in this area is Justice Breyer's in Whole Woman's Health v. Hellerstedt. By 5-3 vote (Garland's nomination was pending), the Court in Hellerstedt held unconstitutional some Texas health and safety regulations for abortion clinics. If Gorsuch had been on the Court together with any one of the potential nominees on President Trump's short list now, Whole Woman's Health would have come out the other way. The Supreme Court would have affirmed rather than reversed the decision under review. That decision would not have required overruling any more of Roe, just applying the undue burden standard from Casey more like the court of appeals did.
It is impossible to know what abortion-law case the Supreme Court will take up next. But it is reasonable to believe that the case's correct decision may require overruling Roe further than Casey did. If the Court decides to review the constitutionality of a state law prohibiting abortion after twenty weeks, for example, the Court should abandon the line that Casey drew at viability.
This shift would not be avulsive. An unborn baby at twenty weeks gestational age is obviously as much a human being worthy of positive-law protection as one at twenty-four weeks gestational age.
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Abortion-friendly activists are understandably uneasy these days. But their real concern should not be Roe's further demise. They should worry, instead, that the pro-life movement will continue to win hearts and minds for the principle of human equality that justifies judicial abandonment of Casey's viability line. And they can now expect the Supreme Court's unjust abortion opinions to erode at the same pace.