Yesterday, the Kavanaugh Column reflected on a growing trend in the federal judiciary – open criticism, and even hostility to, Roe v. Wade. This criticism, of course, began at the top down, with several Justices of the Supreme Court complaining of the “post hoc nullification machine that is our abortion jurisprudence.” Justice Clarence Thomas has called outright for its reversal, and the late Justice Antonin Scalia made Roe a frequent target of his juridical barbs.


Some judges take the tack that Justice Sandra Day O’Connor took, who as early as 1983, declared that Roe was “on a collision course with itself” because its structural framework for protecting “fundamental” rights depended upon changing medical technology. The late Chief Justice Rehnquist and Justice Byron White, who had both dissented from Roe (the latter calling Roe “an exercise of raw judicial power”) agreed with this. Judge Andrew Kleinfeld of the Ninth Circuit observed, “Viability is the ‘critical fact’ that controls constitutionality. That is an odd rule because viability changes as medicine changes. As Planned Parenthood v. Casey noted, between Roe v. Wade in 1973 and the time Casey was decided in 1992, viability dropped from 28 weeks to 23 or 24 weeks, because medical science became more effective at preserving the lives of premature babies.”


Others have opined that abortion is a medical procedure that is simply beyond the proper purview of the federal judiciary. The former chief judge of the Fourth Circuit Court of Appeals, Harvie Wilkinson, cautioned in a 2009 opinion involving Virginia’s partial-birth abortion statute that “Matters of such medical complexity and moral tension as partial birth abortion should not be resolved by the courts, with no semblance of sanction from the Constitution they purport to interpret. Indeed, the sheer mass of medical detail summoned in this case has led us far beyond the ambit of our own professional competence.” Likewise, Judge James L. Ryan of the Sixth Circuit (joined by Justice Alice Batchelder, also a Roe skeptic) wrote in 2003, “[W]e suffer from a serious institutional disability in a case in which vitally important issues turn on medical facts, yet the record consists mainly of the conflicting opinions of highly interested, even ideologically motivated, experts.”


Still others complain broadly that Roe and the Supreme Court have hamstrung the states from regulating a common outpatient procedure, even when to do so would further public health and safety. Judge John M. Walker, Jr., of the Second Circuit, wrote in 2006:


I can think of no other field of law that has been subject to such sweeping constitutionalization as the field of abortion. Under the Supreme Court’s current jurisprudence, the legislature is all but foreclosed from setting policy regulating the practice; instead, federal courts must give their constitutional blessing to nearly every increment of social regulation that touches upon abortion—from gathering statistics about its frequency to establishing informed-consent standards that govern its use …. In the end, I cannot escape the conclusion that, in these abortion cases, the federal courts have been transformed into a sort of super regulatory agency—a role for which courts are institutionally ill-suited and one that is divorced from accepted norms of constitutional adjudication.


Echoing these sentiments, Judge Daniel Manion of the Seventh Circuit wrote this past spring:


[A]bortion is now a more untouchable right than even the freedom of speech. The doctrinal reason for this is that Casey’s “undue burden” standard is not a means-ends test, but a pure effects test. The key quote from the Casey joint opinion reveals this: a regulation of abortion is invalid if it “has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” This means that even a regulation narrowly tailored to serve a compelling state interest is invalid if it prohibits any abortions before viability.


Perhaps the most memorable words on this issue were penned by a former chief judge of the Sixth Circuit Court of Appeals, Danny Boggs, who observed in 1997 that “[t]he abortion area, of course, has been largely constitutionalized, as the Supreme Court has made clear in a line of decisions starting with Roe. Some choices, however, remain within the state’s legislative power. These choices have not always been well delineated by the Court . . . .” Judge Boggs goes on to offer this brilliant word picture to illustrate his point:


The post-Casey history of abortion litigation in the lower courts is reminiscent of the classic recurring football drama of Charlie Brown and Lucy in the Peanuts comic strip. Lucy repeatedly assures Charlie Brown that he can kick the football if only this time he gets it just right. Charlie Brown keeps trying, but Lucy never fails to pull the ball away at the last moment. Here, our court’s judgment is that Ohio’s legislators, like poor Charlie Brown, have fallen flat on their backs. I doubt that the lawyers and litigants will ever stop this game. Perhaps the Supreme Court will do so.


Here’s hoping, indeed.