Over the past several weeks we have heard cries that the confirmation of a new Supreme Court justice will eradicate the right to abortion. Nevertheless, Brett Kavanaugh was confirmed. We now have a newly established court of nine judges, including two “conservative” leaning judges installed within the past two years: Neil Gorsuch and Kavanaugh.
Access to legal abortion is an issue that is important to many Americans, including many Jews. How much of the threat is real? And what does Federal Law really say—The seminal case, of course, is Roe v. Wade, a 7-2 decision which established a finding by seven justices of that Court that there exists a Constitutional right to abortion—but Roe is hardly the final word.
The truth is that the law is rather muddy. Of course, in 1789, the concept of medical abortion didn’t exist. Abortion was not a concept drafted into the Constitution. What occurred over the latter half of the 20th century was an evolution in case law which led to a judicial finding by the Court.
What right did judges have to conclude that such a right exists? The question is more than hypothetical—but cuts to the very heart of jurisprudence—Should judges be “originalists” or “evolutionary?”
There is a basic split as to the proper role a judge plays. Originalists believe that laws are fixed when written. They say that in order for laws to have meaning, only the exact law as drafted can be interpreted to have any meaning. Evolutionists take a varied approach—they see the law as a living document. One that changes and adapts to meet new needs of the day. An evolutionary Constitution acts as a guide, but not the final word. They seek guideposts to try to figure out what the law should mean in modern time.
The tension between originalists and evolutionists is timeless. In the latter half of the 20th Century, the evolutionists were pretty much in control. After 1980, several originalists: specifically William Rehnquist, Antonin Scalia, and Clarence Thomas were installed. When assessing a “threat” to the fundamental right of abortion, the threat is personified in the two most recent judges confirmed, both of whom seem to heed to the originalist philosophy, and accordingly may be more suspect of a Constitutional right that is not concretely spelled out in the document.
But going back 50 years, judges were much more willing to find evolutionary rights. In 1965, Estelle Griswold was a married woman who consulted with her gynecologist seeking birth control medication. It may seem ridiculous today, but Connecticut had a law in place in 1965 which banned the use of birth control. Griswold argued successfully that the law violated the sanctity of her marital relationship.
If there had been no Griswold there would not have been Roe. Roe was really Norma McCovey, a Dallas woman who found herself pregnant with a child she did not want. Texas had a state law greatly restricting abortion.
The main awkwardness of the analysis of the 7-2 majority opinion is that they used the Griswold decision to find “a penumbra” of Constitutional rights which established abortion as an unabridged right.
While there is no specific right in the Constitution which refers to the right of family planning (nor, alternatively, to the right of the unborn), the majority of judges came to the conclusion that a plurality of Constitutional principles taken as a whole would have found a fundamental right of privacy for women, and the relationship they have with their doctors.
A significant question regarding the judicial decision was based on its framework: Justice Harry Blackmun established a “trimester” analysis. In doing so, the decision creates content not expressly within the Constitution. That left the Court open to criticism that it was exceeding its authority to interpret law, and was rather creating it.
Aside from trimesters not being found anywhere in the Constitution, a test based on viability is subject to attack as medical technology advances, as it has.
Two decades later the Court was presented with Casey v. Planned Parenthood. While rarely cited by pro-choice proponents, this case, heard and decided in 1992, is much more impactful and controlling than Roe v. Wade.
The issue in Casey were Pennsylvania rules, among which was the imposition of a waiting period prior to an abortion and a notification requirement to the father.
The Court reiterated the basic holding of Roe -that women have a right to privacy and the right to abortion cannot be unduly burdened. However, in doing so, it found that the state could impose reasonable restrictions. The court also threw out the trimester analysis.
The bottom line is that despite the current rhetoric, Casey controls. There are fundamental privacy laws which extend beyond the Constitutional dicta, but further, Casey states that the precedent of these rights are essential.
The rhetoric that Roe v. Wade might be overturned is a scare tactic. It’s already been reinforced and modified by Casey—and even if a majority were to find that the Court exceeded its authority in deciding Roe (which is not a radical opinion), abortion cannot be restricted without overturning Casey as well—and that is not going to happen because Casey is much more restrained. Which makes it more defensible—and enforceable.
Both Roe and Casey stand for the proposition that states cannot legislate wholesale against abortion or unduly burden the right. Even if Roe and Casey were thrown out tomorrow—a farfetched scenario at best—all it would mean is that states would be able to legislate or restrict abortion as States see fit. While some states might seek to outlaw abortion outright, many would not and for those of us living in the northeast, the great likelihood is that absolutely nothing would change.
What the Court cannot do is exactly what critics suggest the imposition of new judges would: Judges cannot by themselves outlaw abortion unilaterally. Neither under Federal or State Laws. Only legislatures can pass laws. Even the most conservative judges have recognized an “established Constitutional right to abortion”—language in Casey which upholds access to the procedure. As such, outlawing abortion in the United States would require an amendment, and the chances of such an amendment passing are slim and none.
The tension between originalists and evolutionists will go on—and it is a healthy tension. In the end, it is society, not judges, which decide which laws prevail. Judicial decisions generally end up aligning with popular opinion. Sometimes it just takes a little longer to get there. The great quandary for abortion opponents is that while originalists are less likely to find a Constitutional right that is not written in the Constitution, philosophically such judges also usually see their role as interpreters -—therefore originalists, by nature, or much more reticent to install or strike down laws by fiat. Precedent has value and the right to abortion is established precedent.
By Stephen Loeb
Stephen R. Loeb heads the Law Office of Stephen R. Loeb, a civil practice in New Jersey and New York. He can be reached at [email protected]
