October 27, 2021

Saving Break

Break Through With Legalicy

Wading Into Roe v. Wade

Imagine it’s April 22, 1992. The Supreme Court of the United States is hearing a high-profile abortion case — Planned Parenthood v. Casey. 

Oral arguments in the case are over. Chief Justice Rehnquist is in the judges’ conference, where he counts the five votes he needs to overturn Roe — himself, Kennedy, Scalia, White and Thomas. Sandra Day O’Connor, the Reagan-appointed first-woman-on-the-court who railed against abortion during her confirmation hearing, is quiet while the liberals are thoroughly dejected. Rehnquist even privately passed around a draft opinion which met the justices’ expectations. But then, out of the blue, things take a surprising turn on May 29 when Justice Blackmun, the author of Roe’s majority opinion, receives a telegram from Justice Kennedy, informing him of “welcome news.”

What happens next is history — the Souter-O’Connor-Kennedy plurality (informally called the “Troika”) opinion in the Casey decision goes on to become one of the most confusing yet consequential decisions in Supreme Court history — one that not only upheld Roe v. Wade but also gravely affected it.

This is the precedent I hope to explore. 

In the United States, abortion is a heavily political issue. From the Hyde Amendment to the implementation of stringent regulations, abortion has been a source of fierce debate. Yet, what most people don’t recognize is that the conversation on abortion in general and the Roe/Casey decisions in particular not only affects women who may seek an abortion but also everyone else in society. Given the planks on which the decisions rest, a potential re-evaluation of their standard in a case like the Mississippi abortion case (Jackson Women’s Health Organization v. Dobbs) which was taken up by the Supreme Court for the fall 2021 term could gravely upend judicial precedent regarding state regulations and personal liberty. 

If one were to look into the nuances of Roe and Casey, it wouldn’t escape one’s attention that the backbone of these decisions is utilized across an array of issues — it isn’t limited to abortion. A re-interpretation of the backbone of these decisions could have a ripple effect as almost half a decade of precedent is unraveled, shedding light on the fact that abortion is hardly tied to Roe anymore, it has gone way beyond.

So what exactly is this backbone?

When Justice Blackmun wrote the majority opinion in Roe v. Wade, he spoke about the inherent right to privacy — a fundamental right extracted from the Constitution. Privacy was an idea not clearly stated in writing, but the concept was included in the Bill of Rights as the “penumbral rights of privacy and repose.” It is important to note here that privacy, as it relates to Roe, doesn’t specify the right to being left alone but rather, the right to freedom from excessive government interference. Blackmun argued that it may be found in the concept of personal liberty and restrictions on state action in the 14th Amendment or in the 9th Amendment’s reservation of rights to the people. Concerning state regulations, he also came up with a trimester framework, allowing no regulations in the first trimester, “reasonable” and “narrowly tailored” ones in the second, and almost all in the third.

This interpretation, which legal scholars call substantive due process, was Roe’s gift to the law. Roe v. Wade was the first decision that explicitly mentioned that people have a right to dictate their lives independent of government interference; in other words, that they have a right to privacy

Professor Michael Klarman from Harvard Law said in an interview to the HPR that as second-wave feminism began gaining ground in the U.S., “opinion changed very rapidly in a very short period of time: From there being almost no support for abortion liberalization in 1967 to there being quite significant support.”Nevertheless, he adds, “something interesting happened after Roe.” Roe v. Wade sparked new life into the pro-life movement — it was seen as a signal for the conservative movement wherein they “identified a potential coalition between economic libertarians and religious conservatives that could elect them Ronald Reagan.”

Roe had tremendous political consequences and gave the Christian right a rallying cry to unite behind. With a mobilized opposition, the Roe precedent’s social, legal, and political standing was continuously questioned and cases were launched to challenge its standing. To no avail. 

It was only in 1992 that a substantial dent in Roe was made by Planned Parenthood v. Casey. In the Casey opinion, the “Troika” of Justices Souter, O’Connor, and Kennedy together upheld the central tenets of Roe — that women have a right to abort a non-viable fetus, that states can restrict abortions only after viability with exceptions, and that states have a legitimate interest in protecting a pregnant woman’s health and the fetus’ life.

The devil was in the details. Roe’s trimester framework allowed a woman full control over her own body as long as the fetus within her was considered “non viable” — in 1973, that was before the third trimester. O’Connor, who didn’t join the bench until 1981, wasn’t satisfied with the framework — she knew that medical progress meant that viability would continue to become earlier, and famously wrote in City of Akron v. Akron Center for Reproductive Health that Blackmun’s Roe framework was essentially “on a collision course with itself.” O’Connor thus scrapped Roe’s framework and settled on the undue burden standard.

This is where things get messy.

Undue burden and the right to privacy in Casey

Sandra Day O’Connor’s reasoning in Casey was simple. She argued that strict scrutiny under the trimester framework could not be applied to abortion, given its undue stringency and lack of scientific reasoning. Given that the court had accepted the government’s interest in protecting the fetus already, O’Connor established the “undue burden” standard to help analyze the constitutionality of abortion restrictions. This implied that an abortion restriction can be ruled unconstitutional only if it places an undue burden on the woman seeking to abort a non viable fetus.

Very skillfully, the “Troika” used the Casey decision to make abortion an issue of women’s equality, justifying Roe’s standing by citing its influence in women’s lives over the years and how it defined the capacity of women to act in society and make reproductive decisions. It’s quite interesting to note the Justices’ intentions here. As Professor Klarman told the HPR, the justices’ invocation of Roe’s influence on a generation of women was simply an institutionalist maneuver by the “Troika” to prevent the public from thinking that “the court is not really bound by the rule of law, [that] their decisions just depend on who happens to be sitting on the court, and that could undermine the legitimacy of the court.” In other words, this was the court’s political calculation.

This was one major development; the second was the right to privacy.

There was not one instance in Casey where the “Troika” outright rejected the standing of the right to privacy nor one where they explicitly stated they believed in it. All discussions involving privacy were made in reference to or in the context of previous cases such as Roe v. Wade or Eisenstadt v. Baird, where the Court ruled out unwarranted government interference in the most fundamental decisions of life. But Blackmun wouldn’t have any of it — in his concurrence, he unequivocally wrote, “the Court today reaffirms the long-recognized rights of privacy and bodily integrity.”

So while Casey let the right to privacy remain standing law, the change that Casey brought to Roe concerning the “undue burden” standard persisted for decades to come, and that standard shaped numerous cases over the years defining Casey’s gift to the law: the concept of undue burden.

So what about it?

The simple outcome of all these cases has been that the conversation on abortion is no longer limited to Roe v. Wade: all these decades have eroded much of Roe and very little of the original judgment remains today, yet that doesn’t mean that Roe is no longer relevant. As Professor Mary Ziegler from Florida State University told the HPR, “Roe has proven to be this extraordinarily flexible symbol, and so when people are talking about it, it’s not necessarily that they’re wrong, it’s that they’ve assigned all of these meanings to Roe beyond what the original decision said.”

The Roe decision clearly established abortion as a fundamental right and applied a stringent framework to hinder excessive regulations. But once Casey established the new undue burden standard, there was a dynamic change in the Court’s perspective towards abortion regulations. O’Connor’s idea was vague — states took advantage of those loopholes and passed numerous restrictive abortion laws. As they made their way up the judicial ladder, two issues of concern stood out — one, the legal impact Casey had had on contemporary fundamental rights cases, and two, the slackened grip it had sparked on state abortion regulations.

Taking the legal perspective first, the Casey decision changed the standard scheme of review of almost every abortion case coming up before any federal Court — as long as Roe stood, the right to an abortion was absolute, and irrespective of how much a regulation interfered with a woman’s right to choose, the trimester framework was applied. After Casey overruled it, the standard’s ambiguity left courts to engage in fact-intensive line drawing exercises from tolerably to unduly burdensome, trying to find a metric.

This also has a great impact on other fundamental rights such as voting rights, familial rights and the right to die. Before Casey, the Court strictly applied strict scrutiny to cases involving fundamental rights, and in a way, this was a means of protecting them from the forever shifting ideological majorities in the Court. The undue burden standard undermined that. Casey is an attractive avenue for any judge who doesn’t wish to apply strict scrutiny to state law, for instance, in Herndon v. Tuhey where the Missouri Supreme Court used the standard to uphold a grandfather visitation law as constitutional. Casey set a precedent, allowing courts to actively interfere in fundamental rights cases as long as it did not pose an “undue burden.”

All of this relates back to the central idea that Roe isn’t just a statement on abortion — it has powerful implications on numerous fundamental rights that people hold dear. 

That brings me to the other perspective — Casey gave individual states far more space to enact restrictions on abortions. As long as Roe was functional, between 1973 and 1992, the Supreme Court overwhelmingly sided with reproductive freedom, upholding Roe’s standing in most abortion-related cases such as City of Akron v. Akron Center for Reproductive Health and Bellotti v. Baird. But after Casey in 1992, the right-leaning Court took advantage of the vague undue burden standard and applied the test very loosely to abortion restrictions in states across the country. 

Between 1992 and 2016, the Court struck down just one abortion restriction in Stenberg v. Carhart in 2000, which related to a Nebraska law making partial-birth abortions illegal; in any case, when Bush’s nominees entered in 2007, the Court upheld a similar law in Gonzales v. Carhart, nullifying the Stenberg precedent. All this occurred while states were passing laws making abortion inaccessible for women — especially poor women and women of color. Speaking of states like Texas and Missouri which have instituted trigger bans for a post-Roe America, Shayna Medley, an attorney for the Center for Reproductive Rights, said to the HPR, “We’re really just seeing a big divide when it comes to access, and this will impact people in poorer states [and] people of color predominantly, so it will certainly have a ripple effect throughout the country.”

These differences in the Supreme Court’s decisions are stark and signal how the court’s ideology shifted over time. Following Reagan’s eight years in office, one of the most liberal Supreme Courts in U.S. history was well on its way towards conservatism — a trend visible even today as abortion clinics consistently close down and states crack down on basic women’s rights.

Is Roe dead, then?

Again, not necessarily. Roe’s premise extends far beyond just abortion — especially keeping in mind the right to privacy, a central component of the Roe decision that the “Troika” in Casey’s opinion worked with but allowed to stand. A right regarded as Roe’s most controversial, yet most influential and significant gift to law. 

Roe v. Wade didn’t create the right to privacy. It is said to have been first conceived of in an 1890 Harvard Law Review article by Samuel Warren and Louis Brandeis. The idea was applied in a few cases over the years, involving giving teachers and parents the right to educate their children in Meyers v. Nebraska, legalizing interracial marriage in Loving v. Virginia, etc. None of these cases explicitly invoked the right to privacy, though — while the Griswold and Eisenstadt cases came close, they just laid the groundwork for Blackmun to solidify the idea in Roe.

“Roe has been a foundational case to privacy rights, both in the context of abortion cases after Roe, but also in privacy rights, more broadly, as we’ve seen in cases like Lawrence v. Texas, and Obergefell, rights for LGBTQ people,” said Shayna Medley in an interview for the HPR.

That is the reason Roe matters today. In the decades that have passed after Roe, the Supreme Court has adjudged numerous cases and upheld multiple fundamental rights on the basis of the “promise of the Constitution that there is a realm of personal liberty which the government may not enter,” as the Court observed in Casey. This right to privacy supports an adult’s right to decide what kind of medical care they want, grants every person’s right to intimacy, acts as the basis for the right to maintain family relationships, and most significantly, protects the right to marry. Every one of these cases has furthered Roe’s premise of personal liberty and can be summed up by Justice Kennedy’s verbiage in the Lawrence decision: “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.” 

Standing in 2021, with Jackson Women’s Health Organization v. Dobbs on its way to the Supreme Court, it is no understatement that Roe v. Wade is at the heart of a spider web of almost 50 years of legal precedent. Not only did Roe solidify years of constitutional law, but it also laid the groundwork for decisions on personal liberty for years to come.

A gradual erosion of Roe v. Wade cannot possibly be good for the future of the government and its people, nor is it good for the thousands of cases involving individual liberties, privacy, and intimacy that bank on Roe. An erosion from Roe to Casey did not fare well for either abortion or any linked cases, and a step further down would surely be worse, giving states even greater accommodation in advancing abortion regulations. Similarly, a complete removal of privacy rights would horribly tip the scale of legal precedent, of which Roe is one very significant portion. 

In the words of Professor Ziegler, “You could try to make it just about Roe and abortion alone, but it will be harder than many people think to isolate abortion and not touch other precedents.” But in an interview with the HPR, she also argued that it’s very difficult to say what path a fairly institutionalist Roberts Court might take, saying that “the undue burden test could either be a vehicle for the dilution of abortion rights, or we may already have a court that is no longer content to gradually chip away, or even not so gradually chip away at abortion rights that wants to get rid of Roe altogether immediately,” adding that “the undue burden test one way or another will play a pretty significant role in what’s likely to be a rollback of abortion rights.”

Professor Klarman, however, said in the interview with the HPR that the stakes are too high, and a decision to overturn Roe would be “too destructive of the legitimacy of the Court, and [the Justices’] own self-understanding as judges.” Yet, he emphasized that really, “the question is just how much they’re going to gut it.” In short, we don’t know where the Court is going, but one thing is clear: the fight for reproductive freedom is not going to get easier.

Justice Kennedy famously wrote, “Liberty finds no refuge in a jurisprudence of doubt.” If people don’t understand the law, they will live in fear that their actions will not be protected, and that is exactly the situation with the Dobbs case that stands before the Supreme Court today. People cannot be certain of what this new court may do, and given the wave of new abortion restrictions across states, many women find no safe harbor. With Roe and Casey hanging in the balance and all eyes on Justices Barrett and Kavanaugh, the current Supreme Court holds the power to decide not only how abortion is evaluated in the future but also how state regulations and individual rights are scrutinized, paving the way for a new paradigm of judicial understanding.

Image from the Senate Democrats is licensed under the CC BY 2.0 license.