If U.S. Supreme Court litigation was a seminar on moral philosophy, I might agree with Robert Verbruggen that the workability of Roe v. Wade is not the best argument against Roe. But the first audience for the case for overruling Roe is the Justices.
And there are several reasons why the case for the unworkability of Roe must be made to the Justices, and why Americans United for Life made the argument, in summary form, in its brief filed January 2 on behalf of 207 members of the US House and Senate–the most members ever on a Supreme Court brief on abortion.
First, the Justices, through numerous cases stretching back decades, have identified six factors for retaining or overruling precedent, one of which is the workability of its legal rules.
Second, the Supreme Court’s jurisprudence raises, from time to time, the question of the workability of the rules it fashions. For example, last year, a majority of the Court in Rucho v. Common Cause refused to wade into the question of creating rules for policing partisan gerrymandering (thereby leaving the problem to the political system of each state), because of the inability to craft a rule that would be workable in distinguishing constitutional from unconstitutional gerrymandering.
Third, Roe v. Wade is demonstrably unique. The Supreme Court did not simply strike down the abortion laws of Georgia and Texas in 1973; it also fashioned for itself the unique role as “the nation’s ex officio medical board with powers to approve or disapprove medical and operative practices and standards throughout the United States,” which Justices White, O’Connor and Thomas have successively emphasized over the years. As time and experience have shown, it is that unique role that isn’t workable for the Court.
Fourth, the Supreme Court in 1992 in Casey refused to reverse Roe due to the assumption—never demonstrated in Casey or since—that women have come to rely on the right to abortion for equal opportunity in American society. Workability highlights the fact that, despite its self-appointed role, the Supreme Court doesn’t know what it doesn’t know about abortion in America. There is no adequate system in America that reliably tracks abortion morbidity and mortality (deaths and injuries to women), and the Supreme Court cannot reliably keep track of deaths or injuries to women, or of the substandard providers and conditions in abortion businesses. That’s why the Congressional brief identifies numerous incidents in Louisiana abortion businesses.
The counter to workability that “the problem is present anytime the Justices apply a right” doesn’t consider the unique nature of Roe. Abortion isn’t in the text of the Constitution, nor supported by precedent, nor deeply rooted in American history. Roe doesn’t involve the Justices struggling with the text.
Workability is a subtle but powerful argument against Roe, especially for those who are members of the “National Abortion Control Board.”
Americans United for Life filed on its own behalf in June Medical Services v. Gee, which lays out a summary of why all six factors of precedent (stare decisis) weigh in favor of overruling Roe. The greater moral and legal argument against Roe is compiled and summarized there.
