A congressional brief goes after the abortion decision where it’s apparently strongest: its force as a precedent.
More than 200 members of Congress, almost all of them Republicans, have signed a brief urging the Supreme Court to uphold a Louisiana law regulating abortion clinics.
In case that wasn’t provocative enough, the senators and representatives suggested that the justices might also consider overturning the court’s two most important decisions on abortion: Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). While the argument they make may not prevail this year, it is a strong one that could eventually prove decisive.
The legislators are going after Roe where it’s apparently strongest: They are attacking its force as a precedent. It seems unlikely that a majority of the current justices believe that Roe was a correct interpretation of the Constitution. Even some legal scholars who support legal abortion have acknowledged that nothing in the constitutional text requires it. But the court has stood by this right for nearly 50 years. Supporters of Roe say it would undermine the stability of the law and the authority of the court for it to change course.
The brief’s counterargument is that this line of precedent has proven “unworkable” and its apparent solidity is an illusion. The legislators persuasively make the case that the Supreme Court’s abortion jurisprudence has not been internally consistent on key points and has not provided clear guidance to states about how they can and cannot regulate abortion.
The Casey decision reaffirmed Roe, but also re-worked it, ditching the "trimester" framework — which theoretically subjected abortion to more regulation the longer the pregnancy lasted — that had previously been considered central to it. Casey held that regulations that placed an "undue burden" on the right to abortion were impermissible. But in 2000, when the court had its first high-profile case applying that standard, the very justices who had written the controlling opinion in Casey disagreed about whether it allowed bans on partial-birth abortion.
A majority of the court said it didn’t.
In 2007, the court took up this issue again, and this time made bans legal (while providing a fig-leaf explanation of how it hadn’t really reversed itself).
The court has not been able to walk a straight line since then, either.
A 2016 decision suggested that states could regulate abortion before fetal viability only to protect pregnant women’s health — in unacknowledged contradiction of both the 1992 and 2007 decisions, which allowed regulations for other reasons, too, such as moral revulsion against partial-birth abortion.
That 2016 decision also suggested that in determining whether a regulation imposes an undue burden on women seeking abortion, the court should weigh the regulation’s benefits against its costs. Previous decisions had not applied the standard that way: Once the court found a regulation had a legitimate purpose and imposed no substantial obstacle to abortion, it left the question of whether the regulation was a good idea on balance to legislatures.
There are other questions on which the court has offered no clear answer. Is abortion a fundamental right, with regulation of it subject to the highest degree of scrutiny from judges? As the legislators’ brief notes, the high court has gone back and forth on this question. Is it, in Casey’s terms, an "undue burden" if a regulation creates a substantial obstacle for a few women seeking abortion, or does it need to create one for a large fraction? It depends on the case before the court.
A few of the conservative justices showed great caution in abortion cases in the last term, so they may not take the brief’s advice. They could decide to let the Louisiana regulations, which require abortionists to have admitting privileges at a local hospital, stand without revisiting their abortion jurisprudence generally.
One way would be to rule that abortion clinics don’t have standing to speak for their prospective future patients in court, especially since the clinics are fighting regulations that might help those patients. That step would bring this part of the law into alignment with the court’s usual approach to standing.
But it would be another change in its abortion decisions.
Thus it would support the legislators’ argument that the court has created a mess rather than a solid body of precedent that much stronger.
The court’s wobbliness isn’t an accident.
It’s a direct result of the lack of constitutional grounding for its decades of abortion decisions. The Constitution offers no guidance on whether or not a restriction on abortion is "undue."
That’s a subjective question, and the answer to it depends a great deal on how much value the life of a fetus has — which is to say, it’s inextricable from the question of the morality of abortion. The justices neither have nor claim any special knowledge about that underlying question. That’s why they ought to exit the field altogether, and leave abortion policy to legislators and voters.
Ramesh Ponnuru is a Bloomberg View columnist. He is a senior editor of National Review and the author of "The Party of Death: The Democrats, the Media, the Courts, and the Disregard for Human Life." To read more of his reports — Click Here Now.
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