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Wednesday, November 02, 2005

What do you think, Rick (and everyone else)?

Suppose the Supreme Court overturns the Roe/Casey line of cases, and holds that abortion regulation, except perhaps in the most narrow circumstances, is left to legislatures.  What happens next?

The most obvious answer is that States revert to whatever abortion laws they have on the books, mostly from the pre-Roe period, and go from there.  As to what would happen next, that's anyone's guess.  Jeff Rosen believes that the vast majority of states would have "mainstream" abortion laws.  Others  have similarly argued that the facts on the ground wouldn't change much.  By contrast, this study claims that thirty states would severely restrict or ban abortions.

I wonder, however, if, assuming the Court does overturn Roe, it should simultaneously overturn all abortion laws that predate Roe.  Before you call me crazy, let me explain. 

The strongest argument against Roe is that it improperly usurped the power of state legislatures (and perhaps the national congress) to legislate per the will of the people.  But legislation does not occur in a vacuum.  As a result of Roe, the legislative debate has been stymied and has clearly not developed as it would have in the absence of Roe; abortion laws have been frozen in time.  Thus, if Roe was a mistake, then the mistake will not magically be "undone" by overturning it.  And so perhaps the Court needs to do more than simply correct its "mistake" (again, we are assuming here that the Court will consider Roe to be a mistake; I'm not claiming one way or another), and figure out some way to allow the natural political process immediately to develop and take hold.  It seems to me plausible, though not certain, that the best way to do so would be to start over with a clean slate, and let the politicians, the interest groups, and the people battle it out.  (Avid readers will recognize that my natural tendency towards populism is in play here, as is my general conception of the Court's role as being to enhance democratic participation.)

Further, the Court should take into account the immediate expectations of the people, and what a sudden change in course would do to those expectations.  Imagine that abortion really were left up to the legislature from the start.  At every step, interested persons would take part in the political process and have fair warning as to what could happen.  But now that the Court has overturned abortion laws for decades, if it Court were to suddenly reverse course, wouldn't that shock the expectations of ordinary people?  What would happen to the woman who had scheduled an abortion for the following week, under the completely justified presumption that her abortion would be legal?  If she lived in a state with a pre-Roe law that banned abortion in her circumstances, her reasonable expectations would be dashed--just because of a change in personnel on the Supreme Court.  And similarly, doctors who perform abortions in such states would be in for a very rude awakening.  This would seem to me a wholly unjust result, and it argues in favor of starting with a clean slate, or at least issuing some kind of moratorium on the enforceability of pre-Roe state statutes.

I have a feeling that I'm not the first to suggest this course, and I imagine that some have offered more specific legal grounds to buttress these arguments.  Can anyone point me to anything specific?

Posted by Hillel Levin on November 2, 2005 at 11:38 AM in Hillel Levin | Permalink


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Simon, thanks for reminding me of that classic line about "call[ing the contending sides" to just "accept" Roe and move on.

I agree with your descriptions of it as deluded, but I think it's best viewed as perhaps the most arrogant statement in any USSC opinion. It's telling one side "just shut up, we have spoken." It seems to me that even if pro-lifers accepted somehow that this IS in the Constitution, then it'd be perfectly legit to convert the movement to one seeking a constitutional amendment. But to tell a side "just shut up and get over it" has shades of a downright tyrannical impulse, in my book. I not only want my way to prevail, I want Winston Smith to AGREE and love Big Brother. I shudder.

And of course, even those who'd dispute my above claim should find it hard to defend the dishonesty calling "both sides" to end "their" division. Sure, except, um, one side WINS, and one side LOSES. If my side won, I'd find it much easier to say "let's stop disagreeing now." What a crock.

I really, really, try to be someone who always respects my opponents in any debate, but all it takes is a re-reading of the actual opinion to challenge my devotion to that cause. I can respect people who are pro-choice on policy, and can try to see the point of those devoted to the cottage industry of "what Roe should have said." But as for defending Roe and Casey AS WRITTEN, I think I've lost the ability to respect that. This stuff is just laughable.

Posted by: just me | Nov 17, 2005 11:07:39 AM

FWIW, Planned Parenthood and other groups are actively trying to have dormant anti-abortion laws revmoved from the books in states, for precisely this reason.

Posted by: Kaimi | Nov 16, 2005 8:22:15 PM

We should probably always begin such discussions, as you do, by pointing out that clarifying precisely what Roe v. Wade, 410 U.S. 113 (1973) - being one of the most widely-discussed but also most infrequently read Supreme Court opinions - says, and therefore the effect of overruling it - is of paramount importance in beginning to repair the corruption stemming from Roe and its progeny. On this matter, I have previously argued that:"[T]his misapprehension . . . whether it be deliberate or unintentional . . . considerably subverts the debate. Roe did not make abortion legal, it merely struck down laws that impeded the excercise of that 'right.' The obvious consequence of this fact is that, if it were overturned, such an action would not make abortion illegal, but rather, the new legal regime would permit the criminalization by state legislatures."However, that aside, I can't agree with your view, because the basis for overruling Roe is precisely that the Federal Courts - like any other branch of the Federal Government - have absolutely no part to play in abortion laws, period. They have no power to expand, contract, manipulate or in any other way "do more than simply correct its 'mistake'" by wiping the slate clean. Even if it did, and even if I knew beyond any doubt that overruling Roe and returning the matter to the states would cause chaos (which I think unlikely), I would still tend to think it more beneficial (albeit rather Utilitarian) if the Court did simply remove Roe and recuse itself from the consequences. It would serve as a warning against future excursions by the Court into territory it has no right to walk on.

Fundamentally, I disagree with your premise that "the Court should take into account the immediate expectations of the people, and what a sudden change in course would do to those expectations." The Justices voting in the majorities for Roe, Casey (505 U.S. 833) et al should have considered "the immediate expectations of the people, and what a sudden change in course would do to those expectations," but they did not; indeed, so deluded was the Casey court that they could write - with no apparent sense of the irony - that Roe "calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution."

As Justice Scalia noted in his Casey dissent, quite the contrary: Roe "fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since." Worse yet, "Roe's mandate for abortion on demand destroyed the compromises of the past, rendered compromise impossible for the future, and required the entire issue to be resolved uniformly, at the national level." The Court should excuse its way out of this thicket it blundered into, as rapidly as dignity permits.

Posted by: Simon | Nov 16, 2005 6:01:35 PM

This is both late to the thread and tangential (so why do I do this?), but in case anyone cares --

If Roe is overruled, what will/should the pro-Roe forces do to REINSTATE it at the USSC level? That is, aside from fighting in State legislatures, and fighting in state courts over state constitutions (an often-overlooked approach, by the way), would/should they also take the big step of trying to restore Roe if the chance arises?

I recognize that this Q seems impossible to answer because of the zillion variables -- it would depend on how soon an opening arises, and on how the battle's been going in the States, etc. But I think asking the Q is useful anyway, because it offers a comparative to the debate about stare decisis and its role in deciding whether to reverse Roe.

Let's say, for the sake of argument, the Roe is ditched 5-4, and within a year, one of the 5 anti-Roe votes goes, and the Dems have the Pres. and Senate. (This combo is not all that likely, in my view.) Surely NARAL might want to bring back Roe's glory? But what do various actors, esp. the academics, say then? If the new anti-Roe decision is now the status quo, does everyone cynically switch sides about the value of stare decisis? Or do they say, "Maybe Roe was illegit, and maybe the Roe-reversal was ALSO illegit, b/c of stare decisis, but darn it, we just can't keep flipping." I can see someone saying, "hey, if we just accept the anti-Roe win, then we're legitimating that terrible violation of stare decisis," etc. In other words, they'd be in (roughly) the spot that the anti-Roe crowd is in now, at least regarding stare decisis.

Most important, what would Kennedy/Souter and Scalia say about a Roe-restoration effort? Scalia seems easy - "we finally got out of that decades-long mess, of COURSE we shouldn't jump back in." But Casey's join opinion said, essentially, "we need not say that Roe was right to begin with, but now that it's here, stare decisis says it should stay." So does the shifted status quo mean that they reluctantly accept the later status quo?

So maybe I'm just weird, but I love this question. Any takers?

Posted by: just me | Nov 16, 2005 5:32:03 PM

Let me get this straight: In the hypothetical, those who oppose abortion would have had their legitimate legislative goals blocked wrongly for a generation, and the best way to un-do that mistake is to wipe away any laws on the books restricting abortion?

Why should we think that laws permitting abortion represent a "clean slate"? Is the law somehow absent in the case of permissive abortion laws? That can't be right, can it?

Posted by: anon | Nov 2, 2005 10:46:41 PM

Akhil Amar suggested something somewhat similar in his contribution to What Roe v. Wade Should Have Said (Jack Balkin ed., 2005), based on equal protection principles. Guido Calabresi also suggested a "legislative remand" of old abortion laws based on the concept of desuetude in Common Law in an Age of Statutes. In some ways the old Jon Newman opinion which Guido adapts is more similar to your proposal to wipe the slate clean. Hope these help.

Posted by: Adil Haque | Nov 2, 2005 3:34:13 PM

The whole last bit is a direct quote. My understanding gleaned from a brief scan of the article suggests that "current majority" refers to a current majority of the legislature--or maybe even the people--following Bickel's view of majoritarianism. The authors write:

"Nonrevival of statutes implicating individual liberty directly follows from the Bickelian premises identified above. A statute that has been at one point at odds with governing decisions of constitutional law concerned with the protection of individual liberty interests should be enforceable only if it is desired by a current majority that has been informed by judicial decisions of the relevant constitutional parameters."

The authors, however, also acknowledge the argument you make about a mandatory sunset:

"The other principal critique of current majoritarianism is the public choice critique that Farber advanced against Calabresi, but that is equally applicable to Bickel. Farber argued that our system of government is premised on the idea that legislation enacted under the auspices of temporarily assembled coalitions will be enforced. Political actors order their priorities in reliance on that fact, and to allow legislation that lacks current majoritarian support to expire would be to strip our governmental system of stability."

The authors argue that Farber's critique doesn't carry a lot of weight in the narrow context of nonrevivalism, as opposed to the wider-ranging argument that all statutes should expire along with the enacting majority. Whether you buy their response to the critique or not, though, it's definitely in interesting article on an interesting problem.

Posted by: Dan | Nov 2, 2005 1:53:22 PM

Thank you, Dan. I look forward to reading the article. Please note that I said this would be the most obvious approach -- not that it would be the most "obviously correct" approach. In other words, I think that if you ask most semi-knowledgeable people, their initial reaction would be that pre-Roe statutes will be revived.

Is the last sentence of your post, "statutes that implicate individual liberty interests should be enforced only if the current majority supports them," a direct quote? Does that mean a "current majority of the court" or a "current majority in the legislature." If the former, it seems to me a mischaracterization to claim that the overturning of Roe means that the majority of the court supports abortion restrictions; rather, it means that a majority of the court supports THE CONSTITUTIONALITY of abortion restrictions. If the latter, it seems way overbroad, for it would mandate that every such law has a built-in sunset. (I think that sunsets on social policy oriented laws are a good idea; but I don't see how they are constitutionally mandated!)

Thanks very much for the pointer. I look forward to an interesting read.

Posted by: Hillel Levin | Nov 2, 2005 1:36:27 PM

The most obvious answer is that States revert to whatever abortion laws they have on the books, mostly from the pre-Roe period, and go from there.

I don't think it's that obvious. Although there is some support for the proposition that a statute declared unconstitutional regains effectiveness when the controlling precedent is overruled, that proposition is not without controversy. For example, William Treanor and Gene Sperling addressed precisely this problem following Casey in their article Prospective Overruling and the Revival of "Unconstitutional Statutes," 93 Colum. L. Rev. 1902 (1993). That article discusses the effect of Casey's changes to the Roe framework on the statutes declared unconstitutional under the pre-Casey standard. The authors conclude: "Use of prospective overruling is also appropriate when there has been governing case law under which a statute, or one substantially similar to it, was held to violate an individual liberty right protected by the Constitution. When that governing case law is overturned, the statute should have to be repassed before it can be enforceable; statutes that implicate individual liberty interests should be enforced only if the current majority supports them."

Posted by: Dan | Nov 2, 2005 1:12:31 PM

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