The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From the Denver Post:
In a strikingly clear message to those who would erode abortion rights in this nation, nearly 59% of Colorado voters struck down a proposed ban on abortions after 22 weeks of gestation.
Women and doctors should be making these medical decisions, not politicians. More voters cast their ballots against the ban than voted for Joe Biden, a testament to Colorado's strong libertarian streak. Biden won by 13 points. Proposition 115 was rejected by 18 points.
Anyone who knows the history of abortion in Colorado is not surprised. We were among the first states (many say the very first) to decriminalize abortion in certain cases in 1967.
We worried that Proposition 115, sold as a reasonable ban prohibiting abortions during the second half of pregnancy, would have a chance in a purple state like Colorado. We are relieved that it did not pass. Women from across the nation come to Colorado seeking abortion care when their home state denies them the medical care they need. Bravely, some of the women who have had late-term abortions came forward to share their heartbreaking stories of love and loss. These women reclaimed the narrative surrounding abortion, helping to remove stigma and shame and replace it with human faces.
Opponents of abortion should take this loss for what it is and refocus their efforts on supporting pregnant women, especially teens, promoting access to birth control and comprehensive sexual education, and boosting adoption programs and foster care services. There is so much need.
So far, it's a policy argument about abortion; but then the newspaper goes on:
And U.S. Supreme Court Justice Amy Coney Barrett should reconsider her position about abortion and stare decisis. Roe v. Wade is now a decades-old decision that laid the foundation for women's rights in a country that at the time was ruled by men. Women for generations have relied upon the guarantee that the government (local, state or federal) will not and can not interfere with their personal medical choices. To rip that foundation out from under women now, would erode this nation's commitment to freedom and our faith in time-honored institutions like the Supreme Court. Yes, Justice Coney Barrett, Roe v. Wade is a super precedent that should remain in place. When states bring ill-conceived restrictions on abortion, our justices should follow the lead of Colorado voters and strike them down.
That's what three Republican-nominated justices did in 1992 with Planned Parenthood v. Casey. The court weighed in on abortion restrictions, not a ban, and declared that abandoning the liberties afforded in Roe would come "at the cost of both profound and unnecessary damage to the court's legitimacy." Laws surrounding abortions performed before the point of viability, the court ruled, must not pose an "undue burden" to women seeking abortion care.
But why should the decision of voters in one state to reject one proposed restriction one year be used by the Supreme Court to bind all states in all years to reject restrictions more broadly? The Post doesn't explain. It does write:
The court must consider the constitutional crisis that would occur in a state like Colorado, in which a healthy majority of voters have definitively said abortion care is an inalienable right, were the court to open the door to a national abortion ban at any point of gestation.
Colorado has spoken and our justices should listen.
I appreciate the concern about a national abortion ban interfering with local citizens' choices; but it seems to me the solution to that would be to say that Congress may not limit abortions, not that states may not limit them. Indeed, why isn't the Court's nationalizing the abortion debate create even more of a "constitutional crisis … in a state like," say, Louisiana, "in which a healthy majority of voters have definitively said abortion … is [not] an alienable right"?
Of course, there are lots of plausible arguments to be made about abortion rights. Most obviously, one could argue that the Ninth Amendment or general notions of liberty secure a right to abortion (compare Roe and Casey themselves). One could argue for respecting precedent in this area for other reasons.
Indeed, if there were a broad and long nationwide consensus in favor of recognizing a right to abortion—rather than just one state's voters invalidating one restriction—one could argue in favor of considering that consensus in determining the meaning of the federal constitution (for instance, in deciding what the Ninth Amendment's phrase "rights … retained by the people" means). And of course there are familiar counterarguments to all these arguments, which I won't get into here.
But the Post's argument seems unusually weak, indeed almost beside the point. There are many reasonable, if controversial, arguments about how the Supreme Court should make its decisions about the federal Constitution. The Post's argument doesn't seem to be one of them.