Monday, October 7, 2019
This past Saturday morning, I had the privilege to address the 2019 General Assembly of the Catholic Bar Association. This year's Assembly was held in St. Louis, and the title of my talk was "What Kind of Law Will It Take to Overturn Roe v. Wade in the Short Term?"
The location and setting brought to mind Webster v. Reproductive Health Services, 492 U.S. 490 (1989). This case out of Missouri placed the constitutional law of abortion in the United States on the trajectory on which it has proceeded for the past thirty years. Doctrinally, one might attribute that significance instead to Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). But the plurality decision in Casey was the product of momentum from Webster. It was in Webster that Justice O'Connor's undue burden standard broke away from the rational basis fold that Chief Justice Rehnquist was trying to nudge the Court toward, and it was in Webster that the rift between Justice O'Connor and Justice Scalia on the constitutional law of abortion became permanent.
Webster came about a couple years after two new Justices had recently been added to a Supreme Court with a Chief Justice publicly committed to judicial restraint. If that sounds familiar, it should. We are talking now, thirty years later, about the very kinds of variables that Court-watchers were talking about thirty years ago: when to distinguish versus to overrule; when to overrule sub silentio versus explicitly; when to construe statutes to avoid constitutional difficulties versus confronting the constitutional difficulties head on; what is "judicial statesmanship" and is it good or bad? And so on.
Tactically speaking, one desideratum for moving toward a stable, more pro-life equilibrium in the constitutional law of abortion in the United States would seem to be avoiding another Webster. By that I mean a narrow tactical "win" that presages a broader strategic defeat rooted in divisions over the pace and explicitness of displacing bad precedents with good ones.
In days to come, I hope to lay out in more detail some of the elements of my Catholic Bar Association approach. Just by way of preview, the recipe for overruling Roe v. Wade that I am working up has three main ingredients: (1) prenatal equal protection; (2) judicial incapacity for line-drawing with respect to relative values of prenatal and maternal life and health; and (3) Catholic guilt.