1992 was a year of disappointing setbacks for pro-life Americans. When most observers thought the Supreme Court was on the verge of overruling its 1973 decisions in Roe v. Wade and Doe v. Bolton, a bare majority of five justices reaffirmed the Roe v. Wade decision on June 29, 1992, at least in its essentials—a right to abortion for any reason, at any time of pregnancy. Four months later, Bill Clinton was elected president, the first president in US history to be openly (and aggressively) for abortion rights. After the election, prolifers were looking to pick up the pieces and move ahead. This was my view from early 1993, looking at what had been gained as well as a road map to get around the obstacles that still loomed ahead. This was originally published, as part of a debate with my friend, Professor Charles Rice of Notre Dame Law School, in the Wanderer.
What Has the Prolife Movement Gained
From 20 Years In the Courts?
by Clarke D. Forsythe[1]
A. Overruling Roe v. Wade Through the Courts
Twenty years after the Supreme Court’s 1973 decision in Roe v. Wade, polls show that most Americans still don’t realize that the Court legalized abortion in every state, for any reason, at any time of pregnancy. How the Court did that is rarely explained and little understood. Public understanding is obscured when the major media still report that the Court only legalized abortion in the first three months. But that’s not what the Court did. The Court ruled that the states could not prohibit any abortion, for any reason, at any time during the first two trimesters (first six months) of pregnancy. Then the Court said that the states could prohibit abortion after viability (roughly 24 weeks gestation) unless abortion was “necessary…for the preservation of the life or health of the mother.” Although this may seem restrictive, the Court defined the “health” exception, in its companion decision, Doe v. Bolton, to include any emotional, familial, or financial reason related to the “wellbeing” of the mother. Thus, the states must allow abortion for any such reason even in the last trimester. Although the percentage of abortions in the last trimester is small, the numbers are still large. At least 13,000-15,000 per year are performed after 21 weeks of pregnancy—275 per week.
Because the Court stripped society of the authority to prohibit abortion that it had exercised for hundreds of years, the Prolife Movement has worked for nearly 20 years to overturn Roe v. Wade. The obstacles to the passage and enforcement of abortion prohibitions cannot be lifted as long as Roe remains the law of the land. The federal Constitution provides only two ways to overturn such a Supreme Court decision. The first is through the passage of a constitutional amendment by three-quarters of the states. The second is through the Court reversing its own decision. The first avenue proved politically impossible in the early 1980’s, so the second, through the courts, has been pursued.
The strategy through the courts relies on experience in the realities of our political and legal system. It begins with the passage of state abortion legislation which attempts to protect women and unborn children by regulating abortion in various ways—like the legislation passed by Missouri which led to the Webster decision in 1989 or the legislation passed by Pennsylvania in 1989 which led to the Casey decision last June. These laws are invariably challenged by the ACLU as unconstitutional under Roe, and this initiates a case in the federal courts. The Supreme Court will usually not review cases involving state legislation which clearly and directly fly in the face of the Court’s previous decisions because such cases present no “substantial federal question.” So, the states must carefully draft legislation that presents new and discrete questions on abortion for the Supreme Court to decide. Through the passage of legislation, creating “test case” litigation, and appealing those cases up through the federal court system, the Supreme Court is given the opportunity to reexamine Roe v. Wade, limit it, or perhaps overturn it. This has been called an “incremental strategy,” since the carefully drafted statutes have been designed to induce the Court to cut back on Roe v. Wade in “increments.” The Court has addressed at least 26 such cases in the past 20 years.
The Planned Parenthood v. Casey decision by the Supreme Court last June was a product of this strategy. The Court upheld, by large majorities, three key regulations on abortion passed by Pennsylvania in 1989 in the aftermath of the Webster decision—informed consent regulations (including a 24 hour waiting period), parental consent regulations, and abortion data reporting requirements. At the same time, however, a majority of five justices of the Court—including for the first time three Reagan-Bush Justices, O’Connor, Kennedy, and Souter—ostensibly reaffirmed the rule of Roe v. Wade that abortion must remain legal for any reason, at any time of pregnancy. Four justices argued that Roe should be explicitly overturned—Chief Justice Rehnquist and Justices White, Scalia, and Thomas. It’s not clear how the public has interpreted this muddled decision. Public opinion polls show that large majorities of Americans supported the regulations that the Court upheld, but most Americans probably don’t realize that the Court reaffirmed the rule that abortion must be legal for any reason, at any time of pregnancy.
B. Personhood v. State’s Rights
In a July, 1992 article in The Wanderer, Notre Dame University Law Professor Charles Rice contended that the Casey decision “shows the uselessness of present pro-life strategy.” By this, he means the incremental strategy through the courts. We’re bound to ask, “useless” for what purpose? For reversing the Reformation? Probably. For overturning Roe v. Wade and returning the authority to the states to prohibit abortion? Definitely not. The reversal strategy has entered a new stage with the Casey decision and the Clinton election, but gains have been made, and the strategy still thrives and will ultimately result in Roe v. Wade being overturned.
Professor Rice’s thesis is that the incremental strategy is “useless” to achieve a “personhood” decision by the Supreme Court. The distinction here relates to the two principal rulings by the Supreme Court in Roe v. Wade. The first was that abortion was subsumed within the “fundamental right of privacy” under the liberty clause of the Fourteenth Amendment to the Constitution. The second was that unborn children were not “persons” within that same Amendment. Had the Court held that unborn children were constitutional “persons,” it would have negated the right to abortion. Overturning the first holding of Roe—that abortion is a constitutional right—would allow people at the state level to adopt their own abortion policy. This has been called a “state’s rights” overruling. Overruling the second holding would go farther; it would affirmatively prevent states from enacting “liberal” abortion policies. We may desire that outcome; but it will not likely come from the Supreme Court without significant cultural change, and it is far less likely than a state’s rights overruling.
For Professor Rice and others, there is only one legitimate way to “overturn” Roe v. Wade and that is through a personhood ruling. A state’s rights ruling is illegitimate and insufficient. But, like it or not, because the Constitution is silent on its face about abortion, the states exercised authority before 1973 to loosen the legal protection for women and unborn children in the law, and no appellate state or federal court before 1973 ever invalidated their authority to do so. Thus, although a personhood ruling might be a prolife aspiration, a state’s rights ruling would return the authority to the states to enact the same abortion prohibitions that existed before 1973.
It’s wrong to say that the incremental strategy has “set back” any goal of achieving a personhood ruling, because a personhood ruling has never really been a strong possibility. The two original dissenters to Roe in 1973—Justice (now Chief Justice) Rehnquist and Justice White—espoused a state’s rights approach to abortion in denying that there was a constitutional right to abortion. They have consistently stuck to that view. Justice Scalia, who joined the Court in 1986, and Justice Thomas, who joined in 1991, have joined in urging a state’s rights overruling. The four dissenters in Casey agreed: “The States may, if they wish, permit abortion-on-demand, but the Constitution does not require them to do so.” None of these four has ever explicitly denied that the unborn child is a constitutional person. They may well believe that an unborn child should be a person under state tort or criminal law. But they have simply held that Roe should be overturned, and abortion policy returned to the states, because there is no constitutional right to abortion. (The implication of such a limited state’s rights overruling, though, is that the unborn child is not a constitutional person.)
Moreover, a personhood ruling has not been undermined by the incremental strategy, because overruling Roe through a personhood ruling has never been disavowed by pro-life advocates; indeed, it has consistently been proposed, in pro-life briefs, as an alternative way to overrule Roe. Lawyers are taught to advance alternative arguments for their position. Pro-life lawyers have consistently argued that Roe should be overturned, either through a personhood rationale or through a state’s rights overruling. But, at least since 1989, when Justice Scalia first made his views known in his Webster opinion, the state’s rights overruling has looked like the more likely outcome, while the personhood overruling has looked like a diminishing possibility.
Furthermore, it cannot be said that a personhood approach has never been attempted. In the immediate aftermath of Roe in 1973, Rhode Island turned right around and reenacted an abortion statute which found that unborn children were persons and prohibited all abortion except to “save the life of the mother.” In the Doe v. Israel case which ensued, a federal trial court immediately slapped an injunction on the statute, a federal appeals court affirmed, and the Supreme Court refused even to address the case because the outcome was so clearly controlled by Roe v. Wade. Such a direct clash with Roe v. Wade was demonstrated to be futile—certainly no stronger legislation would be successful in the courts—and another strategy had to be conceived and implemented. Thereafter, test case litigation was prepared through the drafting of state abortion legislation which carved out issues that the Court had not yet resolved (e.g., fathers’ rights, parental notice or consent, regulations on methods of abortions, informed consent, regulations on abortion after viability). These have been the focus of subsequent cases.
With the 1989 Webster decision, it appeared that five justices—Rehnquist, White, Scalia, O’Connor, and Kennedy—were giving the green light to allowing state abortion prohibitions once again or to overruling Roe outright. But, with the Casey decision, two of those—O’Connor and Kennedy—flipflopped, and, as a result, the Court has continued, at least for the shortterm, the closed door to abortion prohibitions. In Casey, five justices gave notice that they will not approve abortion prohibitions. Nevertheless, the Territory of Guam (represented by AUL) appealed its 1990 abortion statute to the Court in July, 1992. On December 5, the Court refused to hear Guam’s appeal, effectively indicating that the Court will not hear cases with statutes as protective as Guam’s (prohibiting abortion except to save the life of the mother or to prevent severe impairment of her physical health). For now, as a result, abortion prohibition statutes are beyond the scope of state authority, and passage of them would be politically and constitutionally futile until the Justices change favorably. That is most unlikely while Bill Clinton is President.
The contention that a personhood ruling is the only possible or legitimate way to overrule Roe simply fails to come to grips with the clear rationale of the four Casey dissenters for preferring a state’s rights overruling. Their rationale addresses the institutional role of the Supreme Court in American democracy. Justices Rehnquist, White, Scalia, and Thomas have urged that the Court get out of the business of being national abortion umpire, as they wrote in Casey:
[B]y foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.
We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.
We don’t have to agree with the ultimate justice of this approach to recognize that this rationale has a good deal of statesmanlike wisdom in it. And this institutional argument against a personhood ruling is well nigh impregnable, given current cultural constraints. A personhood ruling, and support for such a decision, cannot be microwaved. A personhood ruling will have to be the result of significant cultural change, if it is ever achieved; it will not precede or inaugurate cultural change. It is more likely to come, if at all, after a state’s rights overruling allows legal protection of unborn children to evoke some cultural change. However, it may come only through a personhood constitutional amendment, not through a personhood decision from the Court.
Professor Rice has been an enduring, tireless, and articulate legal advocate for the right to life for whom I have great respect. However, while it may be true that “the only way abortions can be prevented as a matter of constitutional law is to hold that the unborn child is a ‘person’ with a constitutional right to life,” that does not mean that a great good would not be accomplished by overturning Roe through a state’s rights overruling or that a seachange in abortion policy would not result at the state level. It is certainly strange that he would rely on the assertions of Justices Stevens and Blackmun that Roe can only be overturned by a personhood ruling, since they are the last advocates on the Court of a totally unrestricted right to abortion on demand throughout pregnancy. Their claim is obviously designed to raise the ante for any overruling decision. But their contention is clearly rejected by the four dissenting justices who would overrule Roe in a state’s rights manner. And, it is obvious that the states had the authority to prohibit elective abortions before 1973 without the benefit of any personhood decision by the Supreme Court.
Finally, the belief of the four dissenters that Roe should be overturned by a state’s rights ruling does not mean that they do not believe that the fetus is a person. Some clearly do. Justices Scalia referred to the fetus as a “child” or “unborn child” at least twice in his Casey opinion. (In his December 5 dissent in the Guam case, Justice Scalia again referred to the fetus as a “child.”) Neither does a state’s rights overruling mean that the states cannot treat the fetus as a person. Indeed, many states currently treat the unborn child—at all stages of gestation—as a person for purposes of tort or criminal law outside the context of abortion. It was the Court in Roe which created the anomaly that the states can treat the unborn as persons in the case of a vehicular homicide but not in the case of abortion. And the rationale for new abortion laws when Roe is overturned will likely be that unborn children are persons.
What a personhood ruling would mean, at least, is that the states would have little or no leeway to affirmatively authorize elective abortion. While that may be just and desired, not one of the current dissenters to Roe favors that approach because it would continue to involve the Court as national abortion umpire, a role that all of the dissenters consider illegitimate (as a matter of constitutional interpretation) and corrupt (as a matter of democratic government) for the Court and the country. We may disagree with this reasoning, as an abandonment by the Court of its role to protect the right to life of all persons, but it has consistently fallen on deaf ears. We’re perhaps one vote from a state’s rights overruling, but we’re at least five votes from a personhood overruling.
C. The Status of Roe After Casey.
A personhood ruling aside, let’s analyze the real impact of Casey in advancing a strategy to overrule Roe and its establishment of abortion as a fundamental constitutional right. Professor Rice claims that current prolife strategy is futile to achieve a personhood ruling, but he makes no claim that it is futile to achieve a state’s rights overruling. But, even if he had, what is the status of the strategy after Casey? What has the strategy achieved?
Casey was clearly a disappointment of expectations. When the Court seemed poised to overturn Roe v. Wade, when many commentators were predicting that Roe was dead and would be overturned, the upholding of four state abortion regulations seems like a very small step indeed. But the disappointment of subjective hopes should not obscure the objective gains. Unfortunately, too many people were dead certain that the Court would overrule Roe in Casey, and their deep disappointment has prevented them from seeing the progress made.
First, it should be recognized that abortion litigation was inevitable after Roe, given the abortionists’ resistance to any regulation. They are set to challenge any state restrictions in court. This could not be avoided, but their capacity to challenge any regulations has now been curtailed as a result of the Webster and Casey decisions.
Second, the litigation campaign has kept the morality of abortion prominently before the nation like no other means. Each case is given pervasive media coverage, promoting vital public education.
Third, one clear success from the incremental strategy—that could never have been accomplished by a personhood strategy through the courts after the 1973 Doe v. Israel case—is that the incremental strategy has resulted in creating 26 test cases and compelling the Court to apply the standards of Roe to new, discrete legal issues. Because of this continual application of Roe to new statutes in new cases, Roe is still as unsettled as ever after 20 years. The four dissenters in Casey are convinced that the standards applied by Roe are inherently arbitrary and unworkable. Three other pro-abortion justices are not sure why they now support the decision; they have offered no constitutional rationale and can only offer naked political excuses.
Fourth, significant progress has been made in winning regulations that can meaningfully cut back abortion rates and numbers. The Court in Casey upheld, for really the first time in twenty years, important regulatory legislation which, if enacted and enforced in the states, could meaningfully cut the numbers and rates of abortion. During the four and one-half years between 1981 and 1986 that the parental notice of abortion legislation was enforced in Minnesota, teen abortion, pregnancy, and birth rates decreased significantly. A former abortion clinic owner, Carol Everett, has predicted that good informed consent legislation with a 24-hour waiting period—upheld in Casey—might cut abortions by one-third or one-half. Public health data reporting statutes, like the Pennsylvania law, which require that public health data be reported about each abortion, will allow public health officials to gain crucial quantitative data about abortion, pregnancy, and birth trends. These regulations, if passed and enforced in other states, may well reduce abortion rates and numbers in those states.
Fifth, on the constitutional front, the most promising step forward is the ground gained in securing the firm votes of four justices to overrule Roe outright. In 1973, two justices—White and Rehnquist—dissented from the Roe decision. In 1983, the Supreme Court reaffirmed Roe in the Akron decision, but no justice explicitly urged that Roe be overruled. In 1986, the Court reaffirmed Roe a second time in the Thornburgh decision, but only two justices—again White and Rehnquist—urged that Roe be overruled. In 1989, a new majority formed in the Webster decision, but only Justice Scalia explicitly urged that Roe be overruled. Now, in 1992, despite the third reaffirmation of Roe in Casey, four justices have, for the first time, explicitly urged that Roe be overruled, and they have expressed the firm conviction that the Roe is as unsettled as ever. Why should this now be the end of the road for the strategy?
Sixth, twenty years after Roe, the decision is, in fact, as unsettled as ever. Much of prior abortion law—much of Roe v. Wade—was thrown out by the majority in Casey, even as the pro-abortion majority was singing the praises of precedent. The old standards by which state abortion laws were reviewed were considerably changed. The trimester doctrine of Roe was explicitly overruled in favor of a “bimester” approach, with viability the dividing line. Viability, which was previously criticized as wholly arbitrary by Justice O’Connor, was resurrected in Casey in conclusory terms and without any justification. The “strict scrutiny” review was abandoned in favor of an “undue burden” standard. The “undue burden” standard previously espoused by Justice O’Connor was significantly revised by Justices O’Connor, Souter, and Kennedy. Having thrown so much of Roe overboard, the claims of O’Connor, Kennedy and Souter that they will never abandon ship should not be taken as the final word. The unprincipled nature of such decisionmaking—the “revised version fabricated today,” as the dissenters wrote—is apparent. All this ad hoc revision prompted Justice Scalia to write: “[i]t is difficult to maintain the illusion that we are interpreting a Constitution rather than inventing one, when we amend its provisions so breezily.”
Seventh, at the same time, what remains of Roe v. Wade is vulnerable, as the four dissenters forcefully pointed out. They do not believe for a minute that the new “undue burden” test for abortion legislation will survive:
Roe v. Wade adopted a “fundamental right” standard under which state regulations could survive only if they met the requirement of “strict scrutiny.” While we disagree with that standard, it at least had a recognized basis in constitutional law at the time Roe was decided. The same cannot be said for the “undue burden” standard, which is created largely out of whole cloth by the authors of the joint opinion. It is a standard which even today does not command the support of a majority of this Court. And it will not, we believe, result in the sort of “simple limitation,” easily applied, which the joint opinion anticipates…In sum, it is a standard which is not built to last.
Likewise, the four dissenters, through Justice Scalia’s dissent, declared that the undue burden standard “is inherently manipulable and will prove hopelessly unworkable in practice.” Even the three justices of the Joint Opinion conceded that the Court will continue to be involved in litigation as national abortion umpire. Hence, what remains of Roe is more unsettled than ever. However, Chief Justice Rehnquist’s prediction that the undue burden standard “is not built to last” can only be made a reality if new cases are brought to the court over a period of years that demonstrate the standard to indeed be unworkable and arbitrary.
Moreover, in revising Roe, the Joint Opinion was quite defensive in never contending that Roe was rightly decided as an original matter. Rather, the three justices of the Joint Opinion sidestepped that to say that “the immediate question is not the soundness of Roe‘s resolution of the issue, but the precedential force that must be accorded to its holding.” The original premises of Roe were never defended. The historical basis for the Roe decision has been destroyed by subsequent scholarship, and the Joint Opinion never bothered to address it. The troika in Casey gave the appearance of troops fleeing territory that they could not hold in search of new ground. But if the assault is not now redoubled, and the attack is not renewed at that new ground, they might just hold it.
Not surprisingly, the Joint Opinion unleashed a storm of criticism. George Weigel in the Los Angeles Times, wrote that the opinion “was symptomatic of a court in deep intellectual crisis.” Harvard Law Professor Mary Ann Glendon, in the Wall Street Journal, pointed out that American abortion law is still the most permissive in the western world. University of Chicago Law Professor Michael McConnell said on the “MacNeil/Lehrer NewsHour” that it would be “a recipe for disaster” if the Court is to “dig in its heels” like this. And, in the Chicago Tribune, McConnell concluded that the Court has “poured gasoline on the abortion controversy.” George Will called it an “arrogant” opinion. Richard John Neuhaus, in the Wall Street Journal, called the decision “the Dred Scott of our time.” Charles Krauthammer, in the Chicago Sun-Times, concluded that the decision was “appalling constitutional law” and that “the damage is does to the Constitution in its zeal to legislate correct abortion policy is profound.”
Casey contains the seeds of its own destruction and they are perhaps more fertile than the seeds contained in Roe which have borne some fruit. Indeed, the difference between Roe and Casey is the difference between the Court saying that “the fetus is a blob that needs to be removed” and the Court admitting that “abortion is childkilling and America just has to grin and bear it.” This is seen in the new props for Roe.
D. THE NEW PROPS FOR ROE
Having leveled so much of Roe in the Joint Opinion, four new props were quickly erected: the workability of the Roe in the federal courts, the reliance of women on unrestricted elective abortion, the Court’s integrity in public opinion, and the resurrection of viability. These, too, are vulnerable. They must be challenged through litigation, legislation, and education.
1. The Workability of Roe
The first, workability, is in some ways the most astonishing, since Roe has proved inherently unworkable. Roe‘s workability is not demonstrated by the fact that federal courts have been able to strike down and enjoin the enforcement of many abortion regulations enacted since 1973. It is only the Supreme Court, by moving away from Roe, that has overturned lower federal court decisions to lift injunctions against abortion regulations after years of litigation. In the last 20 years, the lower courts have reached contradictory conclusions that defy common sense and the Court has had to finally step in and make some sense of the situation. The conclusion is unavoidable that the joint opinion threw so much of Roe overboard because it was unworkable. Workability must be demonstrated not by how easy it is to invalidate abortion statutes with the stroke of a pen, but by whether federal courts have been able to apply Roe in such a way as to give real meaning to both the state’s interests and the woman’s interests that Roe itself created. This is what the federal courts have been utterly unable to do. Rather, prompted by abortion rights advocates, they have uniformly trumped the state’s interests in the unborn child. It has only been to the extent that the Court has backed away from Roe—most notably sixteen years later in Webster—that the state interests articulated in Roe have been allowed to prevail in any forum.
2. “Reliance Interests” in Abortion As Birth Control
The Joint Opinion’s second prop for Roe is the reliance interests that millions of American women supposedly have in abortion as birth control to “order their lives.” The irony in the Court’s position that millions have relied on abortion to order their lives is that reliance on abortion as birth control has led to profoundly disordered lives for men and women, from which women bear the primary burden. In truth, Roe introduced a nationwide social policy which fostered increasing reliance on abortion as birth control that has undermined secure, independent, and healthy lives for American women. This reliance on self-destructive behavior patterns is most clearly exemplified by the statement to a federal court by a 17-year-old minor seeking an abortion that she had sex (and, what’s more, used no contraception), because she “could easily obtain an abortion without her parents knowing about it.” The numbers of abortions, and the abortion rate, have increased substantially since 1973. The rate of repeat abortions has increased nearly 300% since 1973. Reliance on abortion as birth control has meant a rising incidence of sexually transmitted disease, pressure to abort, illegitimacy, and a continuing incidence of injury and death from legal abortion for American women. Reliance on abortion as birth control is no positive development in the lives of women or men. The policy continued by Casey of abortion for any reason, at any time of pregnancy, will only continue to foster such detrimental “reliance.”
3. The Court’s Legitimacy
In Casey, the three justices of the Joint Opinion exercised a critical misjudgment in deciding that the overruling of Roe—rather than the Court’s continued obstruction of the democratic process as national “abortion umpire”—would produce more social upheaval and more criticism of the Court. Widespread scholarly opinion has acknowledged that the Court, through Roe, exacerbated the abortion issue by acting as a near absolute obstacle to the normal workings of the democratic process. “By short-circuiting the democratic process,” Charles Krauthammer has said, “the court prolongs and inflames the abortion debate.” With an imperial tone, the Joint Opinion “calls on the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.” Since the Joint Opinion never attempts to argue that Roe was rightly decided, and thus so rooted, this is unpersuasive. Krauthammer called this injunction by the Court a “perversion of democracy.” Invoking the force of precedent will not repair the democratic damage that the Court itself has caused. The force of precedent is diminished when Roe has proven inherently unworkable and when so much of Roe has already been jettisoned in recent cases, including Casey.
4. The Continuing Illogic of Viability
In her previous opinions, Justice O’Connor, more than once, held that viability was an arbitrary criterion for finding the state’s interest in the unborn child to be compelling. Yet, now, the Joint Opinion seeks to firmly reestablish viability as the dividing line between two “bi-mesters.” Although the Joint Opinion reaffirms the viability demarcation on the basis of precedent (stare decisis), there is no practical reason why precedent should require retention of this standard any more than the other aspects of Roe that have been discarded.
Viability as “independent existence” has an abstract lure but no practical significance. If the state can truly prohibit abortion after viability, it can enforce that prohibition, as a practical matter, only by requiring that the mother continue to nurture the child until term. It would make no sense—morally, medically, or legally—to act upon the abstract notion of independent existence by requiring premature delivery at 24 weeks for every child set to be aborted. Thus, the practical effect of an abortion prohibition at viability could only be to require the mother to nurture the child for possibly 16 weeks (24-40 weeks term). As a practical matter, then, viability does not relate to the child’s development but only to the length of time that the mother can be compelled to nurture the child. But, if the state can do that, at a time when pregnancy is most physically burdensome, why may it not require the same woman to nurture the child for 8 or 12 or 24 weeks longer? What is the constitutional significance of the increased time burden to the mother? As Julie Makimaa, a daughter conceived by rape, has said, her mother gave a few months of her life to give Julie a lifetime. Viability thus has no practical significance in justifying greater weight in support of the child’s interests than the mother’s.
In some ways, the Joint Opinion was admittedly a philosophical disaster, insofar as five justices adopted a theory of liberty—a theory of the self-defining individual—that is wildly at odds with American legal and cultural history. It remains to be seen how widely this theory will affect other areas of constitutional law, or whether it was newly minted for this case only.
But, at the same time, the Joint Opinion made more frank concessions about the nature of abortion practice in this country than the Court has ever made before. First, the Joint Opinion confessed that abortion is mostly practiced as a unplanned form of birth control:
Abortion is customarily chosen as an unplanned response to the consequences of unplanned activity or to the failure of conventional birth control…[We cannot] refuse to face the fact that for two decades of economic and social developments, people have organized intimate relationships and made choices that define their view of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail.
Second, the Court acknowledged that there are only “rare circumstances in which the pregnancy is itself a danger to her [the mother’s] own life or health, or is the result of rape or incest.” Third, the Joint Opinion recognized that women may suffer adverse psychological consequences from abortion:
In attempting to ensure that a woman apprehend the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed.
For all these reasons, the Joint Opinion creates bold new opportunities, even as it creates grave new dangers. Each must be addressed through litigation, legislation, and scholarly education.
E. THE NEW STAGE
Yet, all this is not to say that the road ahead is straight and narrow. Casey and the Clinton election must not be erroneously viewed as the end of the road. Instead, they must be seen for what they are—at this time—the signs of a new stage in the strategy to overturn Roe through the courts. While the Casey ruling itself did not terminate the reversal strategy, the viability of the strategy is premised on certain overriding political conditions that inhere in our democratic republic and still must be overcome—essentially, that the President nominates new justices and the Senate confirms those nominations. In response to the Dred Scott decision of 1857, anti-slavery leaders like Abraham Lincoln and William Seward forthrightly announced that were determined to overrule the decision through the means afforded by the Constitution—the election of an anti-slavery President and appropriate nominations to the Supreme Court. And even if the Civil War had not come, it is possible that Lincoln would have achieved the overruling of Dred Scott through his nomination of five anti-slavery justices to the Court between 1861 and 1865.
The strategy to overrule Roe is vulnerable to the same constitutional and political conditions and must be adapted accordingly. In the shortterm, abortion prohibitions are beyond the realm of constitutional (and therefore political) possibility. Gains, therefore, will be limited to enacting and enforcing abortion regulations like informed consent (“women’s right to know”) and parental notice or consent that can meaningfully reduce abortion (and perhaps pregnancy) rates and numbers. The shortterm threats come from Clinton’s efforts to change the Court through pro-abortion nominees like Laurence Tribe and from Congressional action on the federal Freedom of Choice Act (FOCA), which would eliminate all abortion regulations in every state. We cannot forecast the future here; we will have to see how the political battles shapeup.
In the longterm, the prediction of Chief Justice Rehnquist that the “undue burden” standard is “not built to last” must be made a reality through future litigation which reveals the arbitrary and unworkable nature of the new standard. Such litigation is the necessary testing ground. For 20 years, the Court prevented states from enacting detailed informed consent laws and thereby protected the regime of Roe by preventing women from receiving basic information about the nature of abortion, including information about fetal development. By allowing state informed consent laws, Casey allows the states to exploit an essential contradiction in abortion on demand and in the new “undue burden” standard that the Casey dissenters identified: how much persuasive information about the nature of abortion, fetal development, and alternatives, leading to reduced abortions, will constitute an “undue burden” on the “right” to abortion? Enhancing such state laws will yield positive and compassionate state policy, effectively reduce abortion rates, and force the Court (through the litigation that abortionists will inevitably instigate) to examine its own handiwork and the nature of the abortion industry to a greater extent than ever before. Even litigation involving these regulations, therefore, can reveal the contradictions in Casey and our national abortion policy.
All of this will, obviously, be enhanced or inhibited by positive or adverse change in the cultural and political arenas. But the legislative and litigation strategy is a necessary part, in turn, of the effort to bring forth cultural change. It will bear further fruit, eventually, if it is sustained and vigorously pursued.
The resignation of Justice White this spring is, frankly, a significant blow. He was an original dissenter from Roe and one of its most eloquent and powerful critics. His resignation reduces the number of anti-Roe justices to three. Yet, the Reagan-Bush era began with two justices willing to overturn Roe and ends with three. What is more important, in some ways, than counting heads is the force of the constitutional criticisms of Roe. Judge Bork wrote in 1982:
Absent a constitutional amendment, a general means to ensure that courts stay within the limits the Constitution provides for them can only be intellectual and moral. That may seem a weak control. It does not seem so to me. Intellectual criticism in the short run may be quite ineffective. In the long run, ideas will be decisive. That is particularly true with respect to courts, more so perhaps than with any other branch of government.
The powerful criticisms that have been directed at Roe for the past 20 years—by the anti-Roe justices, the Justice Department, and numerous legal scholars—hit Roe like a hurricane in Webster and Casey. The house of Roe was lifted off its original foundations and came to rest on the shifting sands of political fear induced by pro-abortion marches. The criticisms that Justice White initialed will be carried on by Chief Justice Rehnquist and Justices Scalia and Thomas. As John Noonan once wrote, by “the lessons of experience and the force of better reasoning” Roe will ultimately “answer to reason.”
[1] Clarke Forsythe is Vice-President & General Counsel of Americans United for Life, a national, prolife legal and public policy organization.
