The legal futility of relying on SCOTUS to abolish abortion

A lot of people, including many lawyers, are misinformed regarding the legal status of abortion in America. Without correct information regarding the Supreme Court’s decisions, pro-life activists are inevitably bound (1) to appear foolish and (2) to fail in their fight for abolition because they have not taken all the facts into consideration. Based on these shortcomings, this short article is intended to demonstrate the futility of mainline, pro-life activism.

A brief history of abortion jurisprudence in America

Most people are shocked to learn that today, Roe v. Wade holds little to no precedential value. In the vernacular, most people talk about abolishing abortion as an effort to “overturn Roe v. Wade.” Perhaps as an analogy, some Southerners refer to all carbonated beverages as “Coke”—sometimes the vernacular can be misleading. During the twenty years that it was the law of the land, Roe v. Wade stood for the proposition that abortion is a constitutional right found in the penumbra of the Constitution (specifically the penumbras of the Ninth and Fourteenth Amendments).[1] Have you ever looked at the moon on a clear night? When the moon is either waxing or waning, you can still see the darkened, shadowy portion of the moon. This shadowy portion is the moon’s “penumbra.” The Court from Roe v. Wade held that abortion was a right found in the “shadowy” portion of the Constitution.

Of course, this interpretation was contrived, and was utter nonsense.

In 1992, pro-life activists were getting excited because the composition of justices on the Supreme Court had almost completely changed since Roe. The constitutionality of abortion was set for a rehearing. With many scholars agreeing that the age of abortion was about to come to an end, Anthony Kennedy and David Souter shocked the country by voting to preserve the legality of abortion in Planned Parenthood v. Casey. The Court from Casey held that states may not place an “undue burden” on women seeking to procure an abortion. In Casey, there were no more penumbras. Thus, today it may be said that overturning Roe v. Wade would be a legal nullity (pointless), given the Court’s alternative approach to legalizing abortion under Planned Parenthood v. Casey. Because Casey explicitly preserved the “essential holding” of Roe, abortion would be abolished by the Court’s decision to overturn Casey, a point which family law professors stress today.

The actual controversy that led to Planned Parenthood v. Casey involved the challenging of a series of Pennsylvania statutes (1) mandating a 24-hour waiting period between informed consent and the performance of an actual abortion; (2) requiring a minor to obtain a guardian’s consent before obtaining  an abortion; (3) requiring a married woman to notify her husband before obtaining an abortion; (4) enumerating which situations constitute a “medical emergency” (an emergency would override the requirements from the other sections); and (5) requiring certain reports to be filed after an abortion. Only the portion of the statute requiring a wife to inform[2] her husband was found to be an “undue burden,” and therefore unconstitutional.[3] The result of the Court’s ruling in Casey was that a state could not create an undue burden on a woman’s ability to procure an abortion.[4]

Standards of review

One must always be aware of the various standards of review that the Supreme Court assigns to specific types of rights. When the Supreme Court examines a state statute, the Court employs varying presumptions with respect to the states’ legislative intent. In other words, the Supreme Court asks, “How much discretion did the legislature have to perform this action?” The most permissible standard of review from the state’s perspective is called “rational basis scrutiny.” If rational basis scrutiny is warranted, the Court will typically presume that the legislature had a “rational basis” for creating and enacting the legislation in question. Under “intermediate scrutiny,” however, the state must prove that the challenged statute advances an important government interest through means that are substantially related to that interest. The most stringent level of scrutiny from the states’ perspective is “strict scrutiny,” wherein the state must prove that the challenged statute advances a compelling government interest through the least restrictive means.

In the context of Planned Parenthood v. Casey, the court applied the most lenient, rational basis scrutiny, to Pennsylvania law, thereby affording the legislature the presumption that they had a rational basis for enacting the five challenged statutes.[5] As previously mentioned, only the Pennsylvania statute requiring a wife to certify that she had informed her husband prior to obtaining an abortion was found to be unconstitutional.[6] (Between Casey and the present era, there were two notable cases that will not be discussed here, one of which had the effect of maintaining the legality of the Partial-Birth Abortion Ban Act, and another which upheld the constitutionality of a state statute requiring all abortions to be performed by a physician.)

In the intervening years from Casey until very recently, the Court’s standard of review seemed very lax—until the 2016 case of Whole Woman’s Health v. Hellerstedt. As some will remember, the state of Texas attempted to make it illegal for abortions to be performed in areas not equipped to be an “ambulatory surgical center.” This action had the effect of consolidating and confining the number of operational abortion clinics to six urban areas in Texas. Whereas one could have reasonably anticipated that the Supreme Court would have typically deferred to the state legislatures to make these kinds of “safety” assessments under rational basis scrutiny (the same standard used for the previous cases),[7] the Supreme Court drastically switched standards. It went so far as to weigh the medical evidence available to the legislature.[8] Clarence Thomas noted in dissent that the Court’s action in hearing the available medical evidence illustrated the Court’s shift to applying “something more akin to strict scrutiny” to abortion statutes.[9]

This means that when protecting the alleged “right” to an abortion is in its interest, the Court would arbitrarily switch to whatever standard of review best fit its agenda. Moving forward from Hellerstedt, states in defense of any limitation on abortion would have to show a that the statute advances a compelling government interest through the least restrictive means.

What can we learn from these cases?

What options are left to those hoping to end abortion in America? If anything, a reader will hopefully have a heightened sense of what it means both to answer and not to answer the fool according to his folly on this topic. When pro-life activists appeal to the ambiguities of language from the Supreme Court, it should be expected that the Supreme Court will work (even outside the parameters of their own tests and rules, as Justice Thomas noted in his Hellerstedt dissent) to maintain the legality of abortion in America. Pro-life activists who answer the Supreme Court in the Supreme Court’s preferred way are acting in futility.

In order for abortion to become illegal once again in America, it seems as though there are only a few “viable” solutions. One option involves altering the composition of the Supreme Court. Given the existence of lifetime appointment, however, it does not seem as though this is a probable outcome. Also remember that Republican appointments to the Supreme Court have historically been some of the most vocal and damaging proponents for the legality of abortion.[10]

Perhaps another option could be for Congress to outlaw abortion by statute and limit the appellate jurisdiction of the Supreme Court to hear abortion cases (this is theoretically possible under Article 3, section 2). The Supreme Court, however, would still have original jurisdiction over any matter in which a state is a party, so this would likely also be a nullity.

Lastly, a jurisdiction could extricate itself from the stronghold of the federal system altogether. This seems to be the most certain way that abortion could actually become illegal, although the vicious addiction of state governments to federal funding would reasonably lead one to be pessimistic as to the ability of a state to free itself from irresistible money.

In short, the only promising avenue to abolishing human abortion is for states to outlaw it by statute or state constitutional amendment, and then ignore the Supreme Court when it strikes the state law down. Ignore Roe. Ignore Casey. Ignore Hellerstedt. Ignore SCOTUS. States have a duty to interpose between all wicked tyrannical branches of government and the people, especially the innocent, unborn, the little ones.

Donald Soles, III, is in his final semester at Regent University School of Law, and a Senior Editor for the Journal of Global Justice & Public Policy.

Notes:

[1] Roe v. Wade, 410 U.S. 113, 152­­­–53 (1971).

[2] Note that the statute did not require a wife to receive consent from her husband to obtain an abortion.

[3] See Planned Parenthood v. Casey, 505 U.S. 833, 888 (1992).

[4] See id. at 878.

[5] See id. at 888.

[6] See id.

[7] Consider that Planned Parenthood v. Casey proscribed “unnecessary” health restrictions, but consider then how under rational basis scrutiny, the Supreme Court would likely defer to a state legislature’s assessment as to which restrictions were “unnecessary.”

[8] See also Gonzales v. Carhart, 550 U.S. 124, 158 (2007) (upholding the Partial-Birth abortion Ban Act, a case to which I previously alluded). The court said, “[w]here it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to regulate abortion procedures, ‘all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn’.” Id.

[9] Whole Women’s Health, 579 U.S. ____ (Clarence Thomas, dissenting).

[10] Harry Blackmun is a prime example. Appointed by Nixon, Blackmun authored the majority opinion in Roe v. Wade, and authored a special concurrence in Planned Parenthood v. Casey. In this special concurrence (which my professor mockingly called the “abortion is the light of the world” concurrence), Blackmun actually compares the abolition of abortion to the extinguishing of a small, flickering flame of hope for women. Also consider the Republican appointment, Anthony Kennedy, a “swing vote” in Planned Parenthood v. Casey.