« Guests | Main | Sebok on Stevens on Punitives »

Tuesday, February 27, 2007

Overruling Roe v. Wade: A Post in Three Parts. Part I: Who’s Afraid of John Roberts?

In some liberal and/or feminist (though not necessarily legal) circles, there seems to be an abiding fear that Roe v. Wade is in imminent peril. What’s more, some in not-so-liberal circles, like the South Dakota and Mississippi legislatures, must agree, since they keep trying to mount a full frontal challenge to Roe through legislation intended to form the basis for a test case before the Supreme Court. Does anyone think this is going to work?

Of course, anyone can count the votes and conclude that Roe is most likely not currently in danger. But Justice Stevens is no spring chicken, and it is not inconceivable that a fifth anti-Roe vote will join Scalia’s, Thomas’s, Roberts’s, and Alito’s sometime very soon. Even if that happens, is the Supreme Court really ready to go there?

My guess is that the conservative wing of the Court would like to see Roe overruled but is not likely to put itself in a position to vote that way anytime soon. I think the most basic reason for this intuition is that it’s just psychologically difficult to vote to take away a constitutional right previously recognized. After all, conservatives also love to hate Miranda v. Arizona, but when push came to shove, only two Justices voted in Dickerson v. U.S. to overrule it. Moreover, although it’s very hard to know quite what to make of it, the Supreme Court did issue a surprisingly unanimous opinion in Ayotte v. Planned Parenthood, a case dealing with the constitutionality of New Hampshire’s parental notification law for minors seeking abortions, just after Justice Roberts joined the crew. Without wanting to make too much of it, I’d wager that this unanimity signals at least an unwillingness to make waves in this area right away, if not actual agreement with the substance of the opinion of the Court, which upheld the lower courts’ holding that the law was unconstitutional without a health exception (while remanding to the district court for a more carefully crafted injunctive remedy). I'd therefore expect the Court to consistently deny cert in any cases that might pose a direct challenge to Roe.

In the two remaining posts on “Overruling Roe,” I will consider what would happen if Roe were overturned, both in pragmatic terms (what would the state of the law be) and in more abstract legal terms (what would remain of the doctrine in this area). In the meantime, though, I would be genuinely interested to hear others’ takes on this. Is Roe in danger?

Posted by Jessie Hill on February 27, 2007 at 10:49 AM in Constitutional thoughts | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Overruling Roe v. Wade: A Post in Three Parts. Part I: Who’s Afraid of John Roberts?:

» Overruling Roe: Who's Afraid of John Roberts? from The Volokh Conspiracy
My colleague Jessie Hill blogs on the prospects of a Roe reversal at Prawfsblawg here. [Read More]

Tracked on Feb 27, 2007 10:41:55 PM

» Wading 'Round Roe from Joe's Dartblog
At the PrawfsBlawg, law professor Jessie Hill argues that the Roberts court will not overturn Roe v. Wade when presented with the opportunity with the Gonzales cases or some future case.... [Read More]

Tracked on Feb 28, 2007 9:02:44 AM

» SCOTUS Upholds Partial Birth Abortion Ban from Michael Williams -- Master of None
Yes, it's good that the partial birth abortion ban was upheld, but as the news accounts take pains to point out, the ban will affect very few abortions. The decision is a step in the right direction because it sets... [Read More]

Tracked on Apr 19, 2007 10:35:10 AM


David, I'm aware of that, and I'm not sure how that vitiates the point. As Justice Scalia wrote in his BMW dissent, my view is that "a state trial procedure that commits the decision whether to impose punitive damages, and the amount, to the discretion of the jury, subject to some judicial review for 'reasonableness,' furnishes a defendant with all the process that is 'due.' ... What the Fourteenth Amendment's procedural guarantee assures is an opportunity to contest the reasonableness of a damages judgment in state court; but there is no federal guarantee a damages award actually be reasonable." By contrast, the Philip Morris majority apparently believe that "the Constitution’s Due Process Clause forbids a State to use a punitive damages award to punish a defendant for injury that it inflicts upon nonparties or those whom they directly represent." I'm going to stick with Scalia, and it's deeply worrying and disappointing that Roberts and Alito are making a break with such far-reaching ramifications for their view of due process.

Posted by: Simon | Mar 6, 2007 8:48:48 PM

To Simon and Anonymous:

Each of you need to read Philip Morris more carefully. Roberts and Alito, as part of the majority, concluded that the punitive damage award violated procedural due process, not substantive due process. Of the remaining judicial conservatives on the Court Scalia and Thomas dissented, in part on their refusal to characterize the majority's decision as an expression of procedural due process and, concomitantly, as a rejection of the notion of substantive due process.

Posted by: David P. Lyons | Mar 6, 2007 8:15:50 PM

Anonymous - I stand by the Philip Morris comparison. Stenberg may only be (nearly) seven years old, but BMW isn't exactly over the hill itself, at the ripe old age of nearly eleven, and that case surely can't be said to foster reliance interests on the same scale as Stenberg. If your point is that the comparison doesn't work for all the justices, that's certainly true. However, the issue here isn't Stevens and Ginsburg, it's Roberts and Alito, and I can see only two real explanations for their votes in Philip Morris: either they agree with this line of jurisprudence on the merits, which suggests a sympathy with the kind of jurisprudence that spawned Roe-Casey-Stenberg in the first place, or they feel bound by a line of precedent that I would have thought would be a far clearer candidate for overruling if one disagreed on the merits than would Roe-Casey-Stenberg. Naturally, I will be delighted to be proved wrong on this point, but it's far from clear that even if the ban is upheld (which I reluctantly think it ought to be) that Stenberg will be point-blank overruled.

Posted by: Simon | Feb 28, 2007 11:06:34 AM

In response to anonymous, I was not planning to address that point directly elsewhere, so I will address it here. Interestsing comment. But I don't think we can draw the conclusions you draw from the Court's grant of cert in the Federal PBABA cases - for one thing, three circuit courts struck down a federal law; the Supreme Court usually grants cert when a federal law has been held unconstitutional. In addition, "partial-birth" abortion is a very different issue from the right to choose abortion as a general matter, and many people who support Roe (including Justice Kennedy) oppose the availability of the "partial-birth" procedure. Nonetheless, I agree that the Supreme Court is likely (though not certain) to overrule Stenberg v. Carhart this Term. But I think "partial-birth" abortion is much more of an "outlier" issue and that the Court's willingness to jump into that fray not indicative of its willingness to overrule Roe.

Posted by: Jessie Hill | Feb 28, 2007 8:19:53 AM

I hope your next two posts will consider and respond to the obvious criticism of your analysis, which is that upon Justice O'Connor's retirement the Court immediately granted certiorari in partial-birth abortion cases that will almost certainly result in the reversal of Stenberg v. Carhart. This belies any notion that the Chief or anyone else will hesitate to decide cases in this field for the sake of unanimity, and undermines your overreading of Ayotte. After all, Stenberg is just seven years old, and as soon as it became clear that there were no longer five votes to uphold it, the Court granted a case that will permit them to reverse it.

The difference with Roe, as you point out, is that there *are* five votes to uphold that decision. But there, as Justice Blackmun might have said, only one vote separates the Court from Roe and a quite different jurisprudence, and the pro-Roe majority counts the two oldest Justices among its membership. If Stenberg is any indication--and perhaps it's not--as soon as the fifth vote to overrule Roe materializes, the Court will not hesitate to take a case that would permit it to do so.

Incidentially--and sadly--there is very little relationship between a Justice's position on substantive due process limits on punitive damages and on regulation of abortion. Justice Ginsburg dissented in Philip Morris but of course was in the Stenberg majority. Justice Stevens also dissented, and was in the functional Casey majority as well as the Stenberg majority. For this reason among others I don't think that the new Justices' views in Philip Morris are helpful proxies for understanding their view on Roe, Casey, and Stenberg.

Posted by: Anonymous | Feb 28, 2007 2:00:44 AM

Ayotte, I think, betokens little. No party was asking the Court to overturn Roe or Casey. Even the Justices who continue to advocate the overruling of Roe/Casey (Scalia and Thomas) joined that opinion. The Court's unwillingness to reach out for an issue that no party had raised is of little significance.

Miranda is a more interesting example. Its critics, like the critics of Roe and Casey, argue not only that it is wrong, but that it utilizes an illegitimate method of constitutional adjudication. Still, there are important differences. Miranda may be a form of prophylactic regulation that goes beyond the requirements of the Fifth Amendment (although I just finished writing a piece that argues to the contrary; anyone interested in a defense of Miranda as constitutionally required, see http://papers.ssrn.com/sol3/papers.cfm?abstract_id=963201), but it is nevertheless an effort to protect what almost everyone concedes is a textually based constitutional right to be free from compelled self-incrimination. The worst one can say of Miranda is that it overenforces a constitutional right. Roe/Casey critics, in contrast, think that the project of this line of cases is illegitimate from beginning to end - they see nothing in the Constitution that protects abortion or explains why the woman's interest in autonomy trumps the state's interest in protecting potential life (or actual life, depending on your point of view). One need not, of course, be politically conservative to take this view of Roe, as John Hart Ely famously proved. Finally, Miranda has gained wide acceptance -- even from law enforcement. Today, most of its critics are on the left, arguing for even more intrusive regulation (a point also addressed in my article). The widespread public acceptance of Miranda has come to mean that it is no longer seen s compromising the legitimacy of the Court. Roe/Casey, in contrast, continues to be intensely controversial, and its critics see it as continuing to compromise the Court by putting it in the middle of what is properly a political debate. Indeed, the critics see far more commonality between Roe and Dred Scott than between Roe and Miranda. Chief Justice Rehnquist, for example, eventually reconciled himself to Miranda, but not to Roe. Indeed, he joined Justice Scalia's dissent in Casey, which makes an explicit comparison to Dred Scott.

The remaining question is whether Chief Justice Roberts and Justice Alito see Roe/Casey as Chief Justice Rehnquist did. My guess, based on the old memos disclosed at the confirmation hearings, is that the answer to that question is affirmative. To be sure, I think both are real believers in stare decisis, and they will not likely vote to overturn Roe or Casey unless they have no other choice. But I do not expect them to have much nice to say about Roe or Casey when the partial birth abortion case is decided later this Term. And if both join opinions complaining that Roe/Casey is forcing the Court to make decisions about medical necessity rather than law; that will be, in my judgment a potent harbinger that both are prepared to vote to overrule both Roe and Casey.

In short, I think Professor Hill's post misgauges the depth of feeling about the illegitimacy of Roe and Casey among their critics.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Feb 27, 2007 8:27:30 PM

You're making something of an assumption that Roberts and Alito are votes against Roe, something that is far from clear at this point, particularly after their votes in Philip Morris. There, they bought into BMW, either on stare decisis grounds or because they think it's rightly decided as an original matter; neither possibility exactly presages a vote to overturn the much more deeply-imbedded Roe.

Posted by: Simon | Feb 27, 2007 6:11:41 PM

Good questions. We were thinking about these issues here in Utah recently; the state legislature toyed with a bill to ban almost all abortions, designed as a challenge to Roe. (Eventually, the Utah house decided it would be too expensive to litigate and adopted a "trigger" bill instead, which will ban abortions if and when Roe is overturned.)

As to whether Roe is really in danger, probably not, because Roe is more symbolically than legally important. It's Planned Parenthood v. Casey that really governs how much states can regulate abortions. And Casey's undue burden standard seems to allow fairly substantial regulation of abortion, without requiring courts to overturn Roe. Though there are obviously some (like members of the Utah house) who would like to see Roe overturned and all abortions prohibited, it seems more likely that we'll see incremental restrictions on access to abortions.

Posted by: Alice Ristroph | Feb 27, 2007 5:16:57 PM

In a related vein, there might well be a reluctance on the part of the justices to inflict the political consequences of overturning Roe on their allies. Suppose (at least semi-plausibly) that the outrage experiencing yourself as oppressed is more motivational than protecting gains you already have (which is mediated by overconfidence, lethargy, etc.), right now the Christian right is motivated and the feminist left isn't -- reverse Roe and that changes...

Posted by: Paul Gowder | Feb 27, 2007 4:53:49 PM

The comments to this entry are closed.