This is the first of three articles. This part discusses the arguments made in the draft of a potential Supreme Court opinion that would overrule the Court’s two most important decisions on the right to abortion. The draft was leaked to the public last week.
The Supreme Court is pulled in opposite directions when it agrees to consider overturning one of its decisions interpreting the Constitution. On one side, there is the institutional belief that stability and predictability in the law are of basic importance, helping people shape their lives around what the Constitution permits, requires or protects.
On the other side, there is the reality that it is very hard to amend the U.S. Constitution and it is especially hard to pass amendments overturning the Court’s constitutional declarations. Thus, the Court should be somewhat more willing to correct itself.
History demonstrates that it is more often the Court itself that decides to nullify a prior constitutional ruling. Over 233 years, the Court has overruled its own constitutional decisions almost 150 times since 1789 (most recently, just two years ago). The Constitution, however, has been amended only seven times to overrule decisions by the Court, and the most recent of those came a half-century ago, in 1971.
No matter which method has been used, one fact stands out throughout all of that history: not once has a person’s constitutional right been cast aside after becoming a part of the Constitution. If the Supreme Court, in coming weeks, were to overturn the constitutional right to abortion, that would be the first.
It is only fair to note, though, that there are some legal scholars who contend that this would not be the first nullification of a constitutional right. But the evidence they cite is the Court’s famous 1937 decision overturning a string of decisions going back to 1905 that had given business firms a constitutional “freedom of contract” that they used to undermine state laws protecting working conditions for employees – like a minimum wage or limits on working hours.
“Freedom of contract” for a business firm is far from the equivalent of an individual’s personal right. Indeed, the Court has never ruled specifically that businesses are “persons” with constitutional rights.
But, leaving aside the issue of “firstness,” what is Supreme Court Justice Samuel A. Alito, Jr., aiming to achieve in the new draft opinion on abortion? The opinion would cast aside the original decision establishing a right to abortion (Roe v. Wade in 1973) and the main sequel to that decision (Planned Parenthood v. Casey in 1992).
In 67 pages of judicial argument, and 32 pages of appendices, the draft that may have a majority of five Justices behind it would reach that outcome by one sweeping gesture: it would fundamentally weaken a constitutional idea that has been a major part of American constitutional law for at least 131 years, well before the Roe ruling.
That is the constitutional right to personal, physical autonomy, known in decision after decision as the “right of privacy” or the “right to privacy” (there is no significant legal difference between those phrases).
What, basically, does a “right of privacy” mean?
Here is how the Supreme Court spelled it out in an 1891 ruling (Union Pacific Railroad v. Botsford): “No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.”
Justice Horace Gray’s opinion for the majority in that case went on to note that the idea amounted to a “right to be let alone.” That was the way it had been described in an 1878 legal treatise by Thomas M. Cooley, a famous Michigan state judge and legal scholar. That treatise is so famous in the law that it is usually referred to simply as “Cooley on Torts.”
The Botsford decision was partly an interpretation of the “common law,” the accumulation of legal precedents and customs that go back centuries in the history of England; the common law was part of the legal heritage that the colonists brought to America. But the Court made clear in the Botsford case that it was making a constitutional judgment, too. It said: “This is a question that depends upon the power of the national courts under the Constitution and laws of the United States.”
What is most important in modern history about the Botsford decision is that it was the oldest American precedent relied upon by the Court in Roe v. Wade. This right of privacy, it said, “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”
The Alito draft does not mention the Botsford precedent, at all, but it does insist strenuously that a right to abortion has absolutely no foundation in the history of the common law. The draft summons up some of the greatest jurists and legal philosophers in English history to try to show that abortion has never been a right – before Roe v. Wade.
Similarly, the draft seeks to dismiss another form of history: that is, all of the Supreme Court’s prior rulings on the right of privacy that the Court relied upon in the Roe and Casey rulings.
One of the principal thrusts of the Alito draft is to isolate the abortion decision totally. At one point, it remarks: “Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. Zero. None.” At another point, the draft says that, at the time Roe was decided, there was “no state constitutional provision, no statute, no judicial decision, no learned treatise” providing a right to abortion.
This emphasis upon history is crucial to the draft’s reasoning, because of the long-standing principle that, if a right is not specifically mentioned in the language of the Constitution, it still might be granted constitutional protection — but only if it is found to be “deeply rooted in this nation’s history and tradition.”
Since neither abortion nor privacy appears in the Constitution, they both depend upon having a historical pedigree. The Roe and Casey decisions found that exist in the Fourteenth Amendment’s promise that government may not take away the “liberty“ of “any person” without “due process of law.”
The Alito draft rejects that, arguing that those two precedents must be overturned because they represent examples of “freewheeling judicial policymaking” undertaken to create a previously unknown constitutional right to abortion.
The draft goes on, similarly, to reject the suggestion that there is another constitutional provision that might provide a basis for a right to abortion: that is, the guarantee of legal equality in the Fourteenth Amendment. The draft notes that the Court had previously ruled that a restriction on abortion was not a form of sex-based discrimination, even though abortion rules can apply only to women.
Having worked diligently to put a right to abortion entirely outside the Constitution in the first 30 pages of the Alito draft, it moves next to separate a claim to an abortion right from the right of privacy. For those who claim that access to abortion is related to concepts of personal autonomy, the draft sarcastically suggests, the claim is so broad it would also create “fundamental rights to illicit drug use, prostitution, and the like.”
It is here in the draft that the Court attempts to show that abortion claims are entirely different from every other claim related to a right of privacy. No other aspect of privacy, it asserts, involves “the critical moral question posed by abortion.” Abortion alone, it says, destroys a human life, actual or potential.
The draft then devotes the next 30 pages to explaining its refusal to be bound by the two abortion precedents. This is the part of the document that contains the most withering criticism of the half-century of abortion rulings. And this is the part that may be the most difficult for some of the other Justices to embrace without significant change.
In this section, the draft seeks to answer several traditional questions that a court examines before overruling a constitutional precedent. These are the responses, quoted or paraphrased:
What constitutional error did the Roe and Casey precedents commit? “The Court usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people….It is essential that this Court maintain the power to restore authority to its proper possessors by correcting constitutional decisions that, on reconsideration, are found to be mistaken.” In assessing the damage it perceives from these rulings, the draft likens them to the infamous 1896 decision in Plessy v. Ferguson upholding racial segregation in public facilities.
What was the quality of the reasoning in the two precedents? “Without any grounding in the constitutional text, history, or precedent, Roe imposed on the entire country a detailed set of rules like those that one might expect to find in a statute or regulation….Casey either refused to reaffirm or rejected important aspects of Roe’s analysis, [and] failed to remedy glaring deficiencies in Roe’s reasoning.” This lengthy section focuses its ire on the three-trimester formula used to guide abortion protection in Roe and on the rule – the core of both decisions – denying state power to ban abortions before the point in pregnancy where the fetus could survive if delivered (“viability”).
Were the two decisions capable of being understood and applied in a consistent and predictable manner? In essence, the answer here is that every woman is different and every woman’s situation is different, so it is futile for courts to even attempt to determine the constitutionality of a given abortion regulation. The variables it cites are women’s “places of residence, financial resources, family situation, work and personal obligations, knowledge about fetal development and abortion, psychological and emotional disposition and condition, and the firmness of their desire to obtain abortions.” The draft adds that when Casey reaffirmed the core of Roe, it substituted for the trimester formula “a line between permissible and unconstitutional restrictions” that “has proved to be impossible to draw with precision.”
What impact have the two rulings had on other areas of the law? “Roe and Casey have led to the distortion of many important but unrelated legal doctrines.” Among other points, the draft says that the two rulings led to a regime in which almost any regulation of abortion would automatically be struck down with no deference to legislatures’ role, and the Court has been too generous in allowing clinics or doctors to challenge abortion regulations affecting their patients. More broadly, this section contends that the two precedents “require courts to engineer exceptions to longstanding background rules” on when prior decisions should be left intact.
Would overruling the two decisions upend women’s reliance upon the abortion right that they established? This section seeks to make two points: first, that “getting an abortion is generally unplanned activity,” so women contemplating or confronting pregnancy will be able to cope if states regain authority to ban abortions, and, second, that the Court has no way to assess how women’s “ability to control their reproductive lives” will affect their opportunity to participate “equally in the economic and social life of the Nation.”
Tomorrow, the second article in this series will discuss how the Alito draft would implement a decision to overrule the two main abortion precedents.