Monday, November 11, 2019
It is useful for anyone interested in the maintenance of orthodoxy to bear in mind the difference between heresy and apostasy. The Code of Canon Law sets forth this distinction in Canon 751, which differentiates among heresy, apostasy, and schism:
Can. 751 Heresy is the obstinate denial or obstinate doubt after the reception of baptism of some truth which is to be believed by divine and Catholic faith; apostasy is the total repudiation of the Christian faith; schism is the refusal of submission to the Supreme Pontiff or of communion with the members of the Church subject to him.
The distinguishing factor here seems to be rejection of part of the faith ("some truth which is to be believed by divine and Catholic faith), as compared with rejection of the whole ("total repudiation of the Christian faith"). There are different ways in which heresy and apostasy may each be more damaging than the other in certain respects. But from the point of view of maintaining orthodoxy within a community, heresy seems more dangerous in that it might travel under the appearance of orthodoxy precisely because it differs from orthodoxy only in some truth rather than in repudiation of the faith itself.
Monday, October 14, 2019
In a couple of posts last week, I began to introduce a three-ingredient recipe for overruling Roe v. Wade. The first post identified the three ingredients: Prenatal Equal Protection, Judicial Incapacity, and Catholic Guilt. The second post discussed Prenatal Equal Protection. This post continues by discussing the ingredient of Judicial Incapacity.
Consideration of this ingredient begins with what Peter Westen has labeled "The Empty Idea of Equality." By "equality," Westen means the basic principles that "people who are alike should be treated alike" and "people who are unalike should be treated unalike." When we ask how people should be treated, the question then becomes in what respects they are like and what respects they are unalike. Some of the ways in which people are unalike matter in considering how they are to be treated.
In his article, Westen sought to establish that statements of equality entail and collapse into simpler statements of rights, and that transforming the simpler statements of rights into statements of equality is unnecessarily complicated and engenders confusion. One need not accept all the particulars of Westen's use of rights to appreciate the force of his claim that equality is a formal concept, a way of stating moral and legal propositions whose substance derives from more fundamental judgments.
Once we recognize that "person" as used in the Fourteenth Amendment is not limited to postnatal human beings, we next have to determine what it means for a state to provide to unborn persons within its jurisdiction "the equal protection of the laws." At a minimum, this means not treating the unborn as non-persons. But it does not mean treating them identically to the born in all respects. Nor does it mean categorically prohibiting the intentional taking of their lives. As self-defense against lethal violence is a justification more generally in the law, a state does not run afoul of its equal protection duty through declining to criminalize or by providing an affirmative defense for abortions performed to save the life of the mother.
What about other types of limitations on the reach of criminal abortion laws? Right now, a two-drug combination can be used to induce medication abortions. This two-drug combination is approved by the FDA , with certain limitations, through ten weeks of pregnancy. Suppose a state decides not to criminalize medication abortion because of enforcement- and privacy-related concerns. Would this amount to a denial of the equal protection of the laws to unborn persons ten weeks and under? In one sense, yes, and in another sense, no. The answer depends on whether the reasons the state has for structuring its laws the way that it has are good enough reasons. And an appeal to the formal ideal of equality will not help in answering that question.
It could provide a baseline of sorts, a presumption that the difference in location between born and unborn persons is not itself a justification for differential treatment. But once we move beyond that baseline and allow for the potential relevance of factors such as enforcement-related concerns, maternal-safety concerns, and so on, any doctrinal implementation of the equal protection of the laws by judges should be informed by their very limited capacity for making judgments of this sort. That is why the default standard for judicial review of legislative classifications is rational basis review.
Both proponents and opponents of acknowledging the Fourteenth Amendment of personhood have often assumed that this acknowledgment would have obvious consequences for the substantive content of the law--either that all abortion must be criminalized with rules equivalent to those governing infanticide (because of personhood plus equal protection or personhood plus right to life) or that all questions about abortion are simply a matter of state policy judgment as modified by judicial overlay through substantive due process for mothers (because the Fourteenth Amendment does not protect the unborn as persons). But even if we stop treating the unborn as constitutional zeroes when it comes to personhood, there is ample room for a variety of reasonable legislative judgments about abortion regulation compatible with recognition of the personhood of the unborn.
This recognition would rule out some of the most radical state-law regimes that authorize the taking of unborn life all the way through pregnancy based on the unreviewed decision of one physician and one mother for any reason. And this recognition would also require a reorientation of the law that requires a justification for differential protection of the laws for the born and unborn. But this reorientation would not change the judicial incapacity for making value judgments on the relative weights of justifications that underlies rational basis as the doctrinal default in this area.
Tuesday, October 8, 2019
The first ingredient in the recipe for overruling Roe v. Wade is Prenatal Equal Protection.
The most basic function of any government is the protection of persons within its jurisdiction. In the United States, the Fourteenth Amendment imposes on States a duty of supplying the equal, protection, of the laws, to all persons, within its jurisdiction.
This constitutional duty is worded negatively: "No state ... shall deny to any person within its jurisdiction the equal protection of the laws." But it imposes an affirmative duty. As Christopher Green explained in two articles ten years ago (here and here), the original legal meaning of this Equal Protection of the Laws Clause was precisely about the duty of equal protection: no separate laws or patterns of law enforcement for disfavored groups of people; no license for some—such as the Ku Klux Klan—to harm others with legal impunity.
If unborn human babies are persons within the meaning of the Fourteenth Amendment, then this duty of equal protection prohibits the state from licensing lethal private violence against them without some justification tied to their location in the womb to authorize differential treatment. There may be very good reasons for states to have legal rules that differ in some respects for the born and the unborn. After all, equality means treating like things alike, and the born and unborn are unlike in some respects. One way in which they are alike, though, is that they are persons.
The Supreme Court infamously held otherwise in Roe v. Wade, interpreting "person" to exclude unborn human babies. The Court's reasoning on this issue was pretty thin throughout and demonstrably flawed in part.
The demonstrable flaw came in Justice Blackmun's claim that, if unborn humans are persons, the case for a right to abortion "collapses, for the fetus’ right to life would then be guaranteed specifically by the [Fourteenth] Amendment." Justice Blackmun here had in mind the Due Process Clause, as context makes clear.
The belief that the Due Process Clause protects against private lethal violence is a common mistake, one which has ensnared many pro-lifers as well. When one private party kills another, something bad has happened. But not a violation of the Due Process Clause. Only state action violates the Due Process Clause.
While this state-action limitation had been established since well before Roe, post-Roe decisions have made even clearer that the state-action requirement for the Due Process Clause cannot be met by redescribing state failure to intervene against private violence as state action.
The leading case is DeShaney v. Winnebago County Department of Social Services. In Deshaney, the Court held that a “State’s failure to protect an individual against private violence generally does not constitute a violation of the Due Process Clause, because the Clause imposes no duty on the State to provide members of the general public with adequate protective services.”
More recently, the Court stood by the general rule of Deshaney in Castle Rock v. Gonzales, holding that police failure to enforce a restraining order, which resulted in the death of children, did not violate the Due Process Clause; this grievous law enforcement lapse was state inaction rather than state action.
Taken together, Deshaney and Castle Rock refute Justice Blackmun’s operative assumption in Roe that a state’s failure to prohibit and to punish abortion would violate the Due Process Clause.
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.
Wednesday, July 3, 2019
One of the most well-argued books I've recently read on the topic of abortion is Francis J. Beckwith, Defending Life: A Moral and Legal Case Against Abortion Choice (Cambridge University Press 2007). Because of a project I'm working on this summer, my attention was drawn in particular to Beckwith's argument against resting the humanity of the unborn on human appearance after a certain point of development. (A version of Beckwith's arguments, which draw on John Jefferson Davis, Abortion and the Christian: What Every Believer Should Know, is available here.)
Beckwith is right to observe that the human body takes on a variety of forms over the course of life. An elderly person does not have the body of a teenager, a teenager does not have the body of an infant, nor does an infant have the body of an embryo. A healthy, developing embryo at a particular time looks just like a healthy, developing embryo is supposed to look at that time. In Beckwith's words, "the unborn at any stage of her development looks perfectly human because that is what humans look like at that time." We risk confusing appearance with reality if we rest human moral worth on a certain type of human appearance.
But let us not be too hasty in pushing aside the moral significance of a baby's obviously human appearance. In designing laws, it can be helpful to meet people where they're at. Consider the possible legal significance of the first three search results that popped up just now when I googled "pregnancy at twelve weeks":
A baby at twelve weeks gestational age has an obviously human body. If a baby has an obviously human body, isn't it reasonable for us as a people and for our government as a government to treat that baby as a human baby? And don't human babies deserve the equal protection of the laws?
I haven't mentioned anything yet about human personhood. For the moment, though, let's stick with the basic point that a baby with an obviously human body is obviously a human baby. Let's add in a couple other characteristics to the obviously human body, such as life and healthy normal development. Should the law truly be powerless to protect this human being?
It's around this point that people interject considerations that tease apart the categories of human baby and human person. In unselfconscious reversal of the normal charge that pro-lifers are trying to impose their religious views about human personhood, those who seek to deny the human moral worth of babies with an obviously human body tend to rely on a controversial metaphysical claim. There is some property or quality, these people argue, that a human being with an obviously human body must _also_ possess in order to be a human person. But why should we let a controversial metaphysical position of this sort displace the idea that human bodiliness--whatever its relation to "full humanity" might be--is enough to bring a human being within the protective reach of positive law?
Thursday, April 25, 2019
TCPA's content-based robocall ban survives in the Fourth Circuit because of severability; previously exempt debt-collecting robocallers apparently in new legal jeopardy.
In American Association of Political Consultants, Inc. v. FCC, the Fourth Circuit yesterday held unconstitutional an exemption from the federal ban on automated calls to cellphones. This exemption authorized automated calls that relate to the collection of debts owed to or guaranteed by the federal government. In an opinion joined by Judges Keenan and Quattlebaum, Judge King wrote that the exemption was content-based and failed strict scrutiny, but that it could be severed. The result is that the plaintiffs' political calls remain subject to the general ban.
The Fourth Circuit panel seems to have been tripped up in entanglements among standing, substantive constitutional law, and severability. As a matter of standing, the plaintiffs are injured by the ban, not the exemption for federal debt collections. As a matter of substantive constitutional law, the ban and its exemptions form a single unit for purposes of constitutional analysis. The challenge is to a content-based restriction on speech, not to the exemption itself. If this challenge succeeds, there is no work for severability to do in separating the ban from the exemption; the whole unit is unconstitutional. Severability would keep the rest of the TCPA intact, but the content-based ban should fall because of the exemption it contains.
The appropriate unit of analysis for unconstitutionality varies among various areas of substantive constitutional law. But for freedom of speech purposes, a speech prohibition and its exemptions are a single unit of analysis for purposes of determining whether the prohibition is content-based. Consider, for instance, the ordinance in Police Department of Chicago v. Moseley:
"A person commits disorderly conduct when he knowingly:
"(i) Pickets or demonstrates on a public way within 150 feet of any primary or secondary school building while the school is in session and one-half hour before the school is in session and one-half hour after the school session has been concluded, provided that this subsection does not prohibit the peaceful picketing of any school involved in a labor dispute . . . ." Municipal Code, c. 193-1 (i)
The proviso protecting picketing of schools involved in a labor dispute renders the ban content-based. There is not a first-step consideration of the proviso on its own followed by a second-step severability inquiry.
Another way of thinking about the Fourth Circuit's ruling on the robocall ban is by analogy to R.A.V. v. City of St. Paul. The ordinance in that case provided:
Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.
As authoritatively construed by state courts, this ordinance extended only to fighting words, which are constitutionally unprotected. The ordinance was nevertheless subject to strict scrutiny because of its content discrimination ("on the basis of race, color, creed, religion, or gender") within the otherwise unprotected class. Similarly, a blanket prohibition on robocalls may be perfectly fine on its own, unconstitutional if exemptions from the prohibition render it content-based.
In any event, I'm guessing this is not the last we'll see of this issue. In addition to the plaintiffs in the Fourth Circuit case who are smarting from their Pyrrhic victory, I expect that robocallers in the Fourth Circuit may also be alarmed. "Severance" of the statutory provision making their conduct legal means that their robocalls will be subject to the general ban. That's not how this should have gone. But now that it has, it's going to take some more lawyer and judge time to sort things out.
Saturday, February 9, 2019
Several weeks ago, I began drafting a 15-year anniversary post that I never brought myself to finish. It was fairly negative in outlook, and I found ways to avoid attempting either to make the necessary arguments or to abandon them. Here's what I wrote:
We are fast approaching the fifteenth anniversary of the first post at Mirror of Justice.
It feels very different from the tenth anniversary. Then, there were many anniversary-reflection posts from MOJers old and new. These reflections varied in orientation but were largely hopeful.
Now, I expect there will be fewer. And the hope they have to offer will probably not be for the future of this particular group blog.
* * *
Is it time for Mirror of Justice to give up the ghost?
I ask explicitly and publicly in order to provoke honest answers from our contributors.
My answer is yes, for reasons that I aim to elaborate over my next few posts. But perhaps I am wrong.
Not completely inaccurate predictively, I suppose. There have been fewer anniversary posts at 15 than at 10, and they express appropriate uncertainty about the future. But while the posts have been less than confident about the best path forward for this particular blog, they have been more hopeful than I expected about the worth of continuing the undertaking.
I am particularly grateful for the anniversary posts by Greg Sisk and Susan Stabile. Greg writes, "As long as the blogosphere continues, something like the Mirror of Justice is needed. I pray for another fruitful 15 years." Susan "remain[s] convinced of the importance of the enterprise in which we have been engaged for the last fifteen years.
Howard Wasserman's gracious post at PrawfsBlawg was also most welcome."MoJ serves a particular and special message that is not easily replaced," he writes, "and so should continue."
These observations make me think I might have been wrong in my earlier private musings about the practical wisdom of ending this collective project any time soon.
Instead of speculating about the end of MOJ, then, I'll conclude this anniversary-week post with a few thoughts on the blog's beginning.
(1) From today's perspective, the inaugural MOJ post radiates an anticipatory defensiveness of a sort that now seems quaint: "The members of this blog group represent a broad spectrum of Catholic opinion." How nice.
(2) The group members all believe that "faith-based discourse is entirely legitimate in the academy and in the public square, and that religious values need not be bracketed in academic or public conversation." Too bad that needed to be said; perhaps we can better realize now how fragile were the foundations of the consensus position we were challenging even while we were accepting it as obviously legitimate in some way.
(3) "We may differ on how such values should be expressed or considered in those conversations or in public decisionmaking." Probably not as true now, which is all to the good.
Thursday, January 17, 2019
Rick's post about the sexual morality rules at the school where Karen Pence teaches brought to mind this TAC piece by Tim Carney in which Nicole Stelle Garnett's co-authored book with Margaret Brinig plays an important role. Read all three together. Here's an excerpt from Carney:
Sure enough, low trust helped to predict Trump support in the early primaries. The core group of Trump voters in the GOP primary ... were by far the mostly likely to say people mostly just look out for themselves.
In elite family-filled suburbs where most people have college degrees, trust actually tends to be high, regardless of stereotypes about gated driveways. Where do we find trusting middle-class or working-class communities? Where most people go to church.
And when the churches start emptying, the trust starts shrinking. Researchers Margaret Brinig and Nicole Stelle Garnett looked into what happened where Catholic schools shut down for reasons that didn’t appear to be low attendance. Maybe the pastor was transferred and not replaced. Maybe the building had to be demolished. These neighborhoods, shortly after the school shut down, saw increases in public drinking, drug dealing, and drug use. Graffiti, litter, and abandoned buildings became more prevalent.
Sunday, July 8, 2018
How to lose credibility by making a fair point in an unfair way, Michael Sean Winters on Amy Coney Barrett edition
Michael Sean Winters recently made a fair point in a snide and sloppy way. The end result was to illustrate a different point entirely.
The fair point-- better put here by Rick Garnett last fall--is that "it is not inappropriate for senators to question judicial nominees ... about (i) their understanding of the judicial role and (ii) their views about the relationship between a judge's religious commitments (if any) and his or her understanding of that role."
The point Winters actually illustrated, though, is that he cannot be trusted to fairly represent contemporary Catholic legal thought about American constitutional law.
Winters's post is a gallimaufry of ill-informed opinion about legal matters, en passant slimes of people and groups, and intramural Catholic posturing. It does not proceed analytically, but moves on to another point before it finishes developing the argument for a particular assertion. And sometimes there is no argument to be found. In what follows, I address two of Winters's main points as I can best reconstruct them and then explain why the framework he uses is unfortunate.
My two main points in response to Winters are (1) that Barrett's religious affiliation does not put the burden on her to counter a presumption that she lacks independence, and (2) that Winters does not understand originalism and textualism very well. As to the framework, it is regrettable that Winters uses Barrett's potential nomination principally as a vehicle for Catholic intellectual infighting.
1. Membership in People of Praise is not prima facie evidence of a lack of sufficient judicial independence.
In discussing how others have covered Barrett's membership in People of Praise, Winters writes that "it would be irresponsible not to ask questions about the independence we want in a judge, independence that membership in this group would seem to preclude." Take a look at that last clause. A fair reading is that Winters believes "membership in [People of Praise] would seem to preclude" Barrett's possession of "the independence we want in a judge."
This charge is very serious. Yet Winters offers precious little argument or evidence in support. It would be helpful to know if he actually believes it.
Winters offers no reason to think that People of Praise's distinctive beliefs and practices include distinctive beliefs about how Catholic faith informs one's performance of the judicial role. Indeed, Barrett's co-authored article on this issue written twenty years ago is a model of engagement with the Catholic intellectual tradition on this topic. (Incidentally, that article is about cooperation with evil in the death penalty context, not what Winters dismissively describes elsewhere in his post as "issues of pelvic theology.")
The most charitable reading may be that Winters was just being careless here. Perhaps he was making the narrower point that it's reasonable to inquire into the beliefs and practices of a religious group to which a nominee belongs.
A clue that this may be so comes in his first-person declaration: "I am not sure how similar Barrett's life is to 'millions upon millions' of her fellow Catholics: Some of what I know about the 'People of Praise' gives me the willies." This reminded me of Senator Feinstein's "very uncomfortable feeling" about Barrett (and Winters's scare quotes are a nice touch). Feinstein knows many Catholics, like her colleagues Richard Durbin and Tim Kaine, and she seems totally comfortable with them. Barrett, though, seemed different.
Nobody should have a problem with asking a nominee questions about her understanding of the relationship between her religious beliefs and practices and her judicial role. But it's much more of a problem--deplorable, one might say--for Winters to justify those questions by reference to his (or anyone else's) "willies."
2. Originalism and textualism are not "a kind of textual idolatry akin to Martin Luther's sola scriptura approach to the Christian faith, [or] a fundamentalist hermeneutic akin to the Rev. Jerry Falwell's understanding of how to interpret the Bible."
Winters is woefully underinformed about originalism and textualism. The principal merit of his hyperlinked source for defining originalism--a poorly sourced aggregation of content I've never heard of before--is that it may have shown up high in search engine results. I cannot get back into that source without registering, but I can at least report that Wikipedia's entry on originalism is much better.
Wikipedia, too, has its limits, of course. And there are deep theoretical debates about originalism, including arguments about just how representative of originalism Justice Scalia's constitutional law corpus may be. But Winters's assertion that "Scalia's theory has not even a passing similarity with our Catholic intellectual traditions" is easily falsifiable. For readings on the relationship between the Catholic intellectual tradition and originalism, I recommend Lee Strang, Originalism and the Aristotelian Tradition: Virtue's Home in Originalism, and my co-authored piece with Jeff Pojanowski, Enduring Originalism. Even better for those on a tighter time budget is Pojanowski's 7-pager, Why Should Anyone Be An Originalist? (Short answer: Because it's a practically reasonable way of achieving the kind of benefits that the positive law of a written Constitution offers.)
Strang, Pojanowski, and I are admittedly just a few legal scholars trotting out teleological reasoning in theoretical arguments about originalism's jurisprudential foundations. But as far as I'm aware, nobody has taken issue with the claim Pojanowski and I have made that "[f]ar from being a musty, sectarian artifact, the classical natural law tradition of reasoning about positive law’s moral purpose animated the framers’ understanding of our Constitution." The dispute, instead, is instead largely about whether that tradition "provides the most persuasive reason for continued adherence to that original law today."
And contrary to the impression conveyed by Winters (in which Scalia seized on originalism to combat "Blackmun's [sic] penumbras"), neither originalism nor textualism has a necessarily conservative or Catholic inflection. If any particular camp is ascendant in originalist legal theory today, it is probably the libertarians'.
There's much more I could say on these points. But better to save serious analysis for someone who first makes a serious effort to understand what he's trying to take on.
3. Winters's beef is much more with "the conservative Catholic legal establishment" than with Barrett herself.
When I studied for my Theology M.A. at Notre Dame two decades ago, most of my classes were in the Theology Department. But I also participated some in the intellectual life of the law school and took John Finnis's class on Aquinas there.
It was hard back then not to miss two big divides.
One was in the theology department itself, with respect to American Catholicism. Roughly speaking, this was a divide typified by Michael Baxter on the one hand and Richard McBrien on the other.
A second divide was between moral theologians in the theology department and people involved with the legal aspects of some of these issues in the law school. The divide was not neat, for I learned a lot about the intersection of morality and politics not only from Finnis but also, and more so with respect to American constitutional law specifically, from Cathy Kaveny (now at BC).
I mention these biographical notes because they shape the personal perspective I bring to Winters's post, which includes an awareness of the various fissures and tensions among Catholic intellectuals addressing the role of Catholics in American public life.
When understood as the latest volley in an ongoing intra-Catholic skirmish, one can understand why such skirmishing is so regrettable. Barrett is made to bear the brunt of attacks that ought to be aimed elsewhere.
And some of it is downright offensive. Consider, for instance, Winters's discussion of how Barrett "is a product of, and has been groomed by, the conservative Catholic legal establishment." Sure. When she hit it out of the park academically as a law student at Notre Dame, that was just her being groomed. Her impressive scholarship? Grooming also.
"Having been groomed" by the "conservative Catholic legal establishment," Winters writes, Barrett is "now the face of that establishment." It's too bad that's the way Winters sees it and wants others to see it.
Too bad is how I see it, anyway. And I bet I'm not far removed in this regard from the Catholic outlook that informs Persons and Masks of the Law.
Shouldn't we try instead to see Amy Coney Barrett's as the face of a real person with a history, intellect, and will of her own?
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.
* * *
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.
* * *
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.
* * *
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.