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Thursday, March 01, 2007

Overruling Roe v. Wade: A Post in Three Parts. Part II: What if they do?

Assuming that the Supreme Court were to overrule Roe and to do so by determining that the Fourteenth Amendment does not protect a right to choose abortion, and therefore that all restrictions on abortion are subject only to rational basis review, what would be the state of the law in the aftermath of such a ruling? I will put forth some thoughts on the doctrinal effects of such a ruling in my next post, but in this post I ask this question in an even more narrow and immediate way.

The current landscape of state laws regulating abortion looks something like this: most states have a number of laws regulating abortion that were passed post-Roe, such as parental notice or consent laws, mandatory waiting periods, post-viability abortion bans, etc. In addition to such laws, some states have so-called “trigger” laws saying that if and when Roe is overruled, abortion will become illegal (or legal only in certain circumstances) in the state. And some states have pre-Roe abortion bans on the books that are unenforceable under Roe but that have never been repealed; some of those laws have been enjoined by lower courts, but some never have - they just haven't been enforced.

The question that has nagged at me is whether those pre-Roe abortion bans which had not been enjoined, but had not been enforced since Roe, would become immediately enforceable if and when Roe is overruled.

One possibility (further described in the report What If Roe Fell, by the Center for Reproductive Rights) is that the post-Roe legislation regulating abortion in ways inconsistent with earlier bans would be understood as impliedly repealing the prior legislation. Another possibility is that the eponymous doctrine of desuetude, or some version thereof, might prevent their enforcement, especially given that such pre-Roe laws in many cases would not garner a majority of the present-day legislatures in the states where they exist.

I am not aware of any precedents dealing directly with this issue, although there is some older scholarship on “resurrecting” unconstitutional laws. Does anyone have thoughts about this? Did this issue ever arise in the past? For example, when Lochner was overruled and it became clear that the Supreme Court was prepared to uphold most social and economic legislation, did states try to enforce pre-Lochner minimum wage laws and the like?

Posted by Jessie Hill on March 1, 2007 at 12:30 AM in Constitutional thoughts | Permalink


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My colleague Jessie Hill has posted the second and third installments on "Overruling Roe over at PrawfsBlawg. I noted her first installment here. In [Read More]

Tracked on Mar 6, 2007 10:40:00 AM


Jeremy - I don't want to speak for Rosen, and I don't have my copy of the article easily to hand, but my recollection/assumption would be that Rosen makes the standard pro-choice presumption that pro-lifers are but a tiny benighted minority, and that any candidate advocating any measure of restriction on abortion post-Roe (i.e. once democratic choices actually matter, and thus political views on abortion actually matter) would be crushed into electoral oblivion by the massive weight of pro-choice America.

Of course, even if that were not empirically false -- the views of America at large are far more nuanced and far less abortion-friendly than those of Rosen's ilk will admit -- that thesis does face the obvious cognitive dissonance of why in the world anyone who believed they had such a massive majority standing behind a political position would feel the need to rely on an illegitimate and fundamentally countermajoritarian device to implement and defend their position. As I noted back in 2005, pro-choice folks often seem to be trying to have it both ways - they claim majority support, but they only need Roe to protect abortion rights from democracy if they can't command a majority.

Posted by: Simon | Mar 2, 2007 5:33:02 PM

If virtually every state passed laws legalizing abortion, how would that signal the death of the Republican party? Wouldn't that just motivate pro-lifers to pursue making it illegal at the state level? The party would be invigorated. Or is he suggesting that division within the party would kill the party? If so, I'm not sure why it hasn't already over the federal issue. Why would state-level issues kill it in a way that nothing so far has?

Posted by: Jeremy Pierce | Mar 2, 2007 3:28:48 PM

jvarisco - which goes to the point that the formalist's argument that the law is what the law says and reaches the conduct it says it reaches, not what the legislature intended it to say, reaching only the conduct it intended it to reach.

Posted by: Simon | Mar 2, 2007 10:52:37 AM

This seems tangentially similar to the law in Massachusetts that was resurrected to prevent couples from out of state marrying. While it had originally been anti-miscegenation, and thus was not enforced, Romney decided to bring it back, and was able to do so.

Posted by: jvarisco | Mar 2, 2007 12:26:17 AM

Here's a footnote discussing that point from one of my articles:

Richard H. Fallon, Jr., Making Sense of Overbreadth, 100 YALE L.J. 853, 876 (1991) ("A federal court may hold a state statute 'overbroad,’ but it cannot 'invalidate’ a state statute in the sense of rendering it irredeemably null and void.”); Nimmer, A Proposal for Judicial Validation of a Previously Unconstitutional Law: The Civil Rights Act of 1875, 65 COLUM. L. REV. 1394, 1398 (1965) (arguing that the Civil Rights Act of 1875, held unconstitutional by the Supreme Court, could be revived because it had never been repealed); see also Kopp v. Fair Political Practices Comm’n, 905 P.2d 1248, 1257 (Cal. 1995) (holding that a federal court had not "invalidated" a state statute, but had merely "enjoined [its] enforcement"); Jawish v. Morlet, 86 A.2d 96, 97 (D.C. App. 1952) ("[A] statute declared unconstitutional is void in the sense that it is inoperative or unenforceable, but not void in the sense that it is repealed or abolished . . . .").

Posted by: Stuart Buck | Feb 28, 2007 10:17:57 PM

Well, Jeff Rosen's theory, that he expressed in The Atlantic last year, is that virtually state would pass laws permitting abortion and the Republican Party would die a death from which it would never recover. I think that's unlikely, and I doubt Rosen believes it either -- if he did, it's hard to imagine why he wouldn't be out there actively militating for the court to overturn Roe.

I think that the answer has a lot of variables. I think you'd see a lot of refusal to prosecute in some areas; you'd see a sudden instauration of state legislature and prosecutor elections. But in the medium term, a lot depends on the posture of the Supreme Court: is it willing to strike down federal laws trying to settle the issue at that level? I'd have to say that in general, it doesn't - but Carhart, for example, is an imperfect vehicle for deciding that question, because both sides have effectively asked the court to decide the question assuming Congress has the authority to pass the ban in the first place. It wouldn't be very "minimalist" or "modest" to strike it down on a federalism groud raised sua sponte (although obviously the New York Times will try to spin it that way). My own view is that in the main, it's an issue for the states, should remain that way post-Roe, and the Supreme Court should protect that state power. But whether it would be willing to do so, ironically enough, depends on just how liberal a view they're willing to take of the commerce power - and that may depend on who's running Congress after the next election, and thus the character of the laws issuing therefrom post-Roe.

Posted by: Simon | Feb 28, 2007 9:02:34 PM

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