The Volokh Conspiracy

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"What Obergefell Says About Abortion," by Prof. Stephen Gilles (Published and Then Depublished in Law & Liberty)


Prof. Stephen G. Gilles (Quinnipiac University School of Law) published this op-ed at Law & Liberty, but then had it removed by the President of Liberty Fund (the publisher of Law & Liberty) "over some concerns he had about unwanted attention." I e-mailed the Law & Liberty people Thursday to ask for more details, but they haven't yet gotten back to me. Naturally, Liberty Fund is entitled to choose what goes on the Law & Liberty site; but though they have the legal right to change their mind and remove an item they had chosen to publish, that strikes me as the wrong approach (at least absent evidence of serious factual error, plagiarism, or the like, which is of course not their concern in this case).

I therefore thought I'd pass the item along; it of course represents Prof. Gilles' view, not my own, but I think our readers will find it interesting.

Richard Garnett is right about Dobbs v. Jackson Women's Health: the Supreme Court should overrule Roe v. Wade and Planned Parenthood v. Casey because the supposedly fundamental right to elective abortion is not "objectively, deeply rooted in this Nation's history and tradition," as Washington v. Glucksberg requires. Prior to Roe, what was deeply rooted in the American legal tradition was not a right to abortion, but its opposite: abortion at any stage of pregnancy was a crime. Under Glucksberg, Roe and Casey are not merely wrong—they are rogue decisions in radical conflict with a constitutional test that, as Chief Justice Roberts has written, "many other cases both before and after [Glucksberg] have adopted." If the Glucksberg test stood alone as the Court's established approach to implied fundamental rights, the case for overruling would be open and shut. And as Professor Garnett ably explains, Chief Justice Rehnquist's dissent in Casey thoroughly refuted the elaborate stare decisis arguments that constitute the right to elective abortion's last line of defense.

Unfortunately, Chief Justice Roberts' broad endorsement of the Glucksberg test was written in dissent in Obergefell v. Hodges, the Court's most recent pronouncement on implied fundamental rights. Obergefell recognized a fundamental right to same-sex marriage while refusing to apply the Glucksberg test, under which there obviously is no such right. Obergefell granted that Glucksberg's approach might have been appropriate in its assisted-suicide setting, but found it "inconsistent with the approach this Court has used in discussing other fundamental rights, including marriage and intimacy." That alternative approach, as described in Obergefell, requires the Court to "exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect." Unlike the Glucksberg test, "[h]istory and tradition guide and discipline this inquiry but do not set its outer boundaries."

It might seem that Obergefell makes the path to overruling Roe and Casey less straightforward. If Roe and Casey were rightly decided under the Obergefell approach, the right to elective abortion would have significant support in the Court's fundamental-rights jurisprudence. But in reality, both abortion decisions are egregiously wrong by the standards of "reasoned judgment" described and applied in Obergefell. Consequently, the right to elective abortion has no foundation in either of the tests the Court has used to determine whether an asserted right is fundamental.

All roads lead to overruling Roe, and for the reasons that follow, the Court should say as much.

Errors in "Reasoned Judgment"

First, Obergefell directs the Court to "respect" and "learn from" history. Instead, Roe blatantly misrepresented the Anglo-American legal tradition regarding abortion, and Casey flat-out ignored history rather than admit Roe's errors. Our legal tradition regarding abortion began with a common-law consensus that abortion should be a crime no later than quickening, when the unborn child was first known to be alive. Following the early 19th-century scientific discovery that a living human organism is created at conception, a new legal consensus developed, prohibiting elective abortions throughout pregnancy. Under Obergefell's "reasoned judgment" approach, that consensus is not conclusive, as it is under Glucksberg. But a Court that respects our tradition would at least give great weight to its teaching: abortion was always criminalized in order to protect the unborn.

After holding that "the unborn" are not "persons" within the meaning of the Fourteenth Amendment, Roe's historical errors continued. The Court cavalierly inferred that this exclusion of the unborn undermined the strength of the state's interest in protecting them. Assuming Roe's personhood holding was correct, the Court drew the wrong inference from it. If the unborn are not persons under the Amendment, it is because the common law did not include them in the category of legal persons—not because the common law denied that they were human beings prior to birth. In light of our legal tradition criminalizing abortion, omitting the unborn from federal constitutional personhood could not possibly have been understood as depriving them of eligibility for protection under state law. The Amendment requires the states to recognize the legal personhood of any human being who has been born. It does not forbid them to exercise their traditional authority to decide whether (and to what extent) to protect unborn human beings by criminalizing abortion and other attacks on their lives.

The errors continue when we turn to Roe's blithe extension of reproductive liberty from the right to prevent pregnancy (by contraception) to the right to terminate it by abortion. Here Obergefell is instructive on what the current "reasoned judgment" test requires. In extending the right to marry beyond opposite-sex couples, Obergefell argued that "the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples." The reasons supporting the right to contraception, by contrast, do not "apply with equal force" to elective abortions. It is true that women who use contraception and women who have abortions both wish to be spared the burdens of pregnancy, childbirth, and motherhood. But that similarity cannot conceal an essential difference: unlike contraception, every abortion has at least one victim—the fetus whose life is terminated along with the pregnancy. Obergefell, by contrast, found no evidence that same-sex marriage would harm either marriage as an institution or third parties.

Roe and Casey conceded that this difference gives the state an important interest in protecting fetal life. But neither decision explained why that state interest does not undermine the case for recognizing a fundamental abortion right in the first place. Instead, Roe simply declared that women needed this right. It then discounted the state's interest in protecting the fetus prior to viability, on the ground that there is no consensus about when a fetus stops being "potential life" and qualifies as a new human life. But as Justice Scalia explained in Casey, "'reasoned judgment' does not begin by begging the question, as Roe and subsequent cases unquestionably did by assuming that what the State is protecting is the mere 'potentiality of human life.'"

Having ruled out our legal tradition's resolution of this disputed question, Roe foisted on the states its own novel theory: at the earliest, fetal life becomes human life at viability. Yet, as the Court said in Gonzales v. Carhart, "by common understanding and scientific terminology, a fetus is a living organism while within the womb, whether or not it is viable outside the womb." The pre-viable fetus is the same living organism that it will be after it becomes viable, and after it is born. From the outset, it contains within itself the genetic endowment that makes it a member of our species, distinguishes it from other humans, and directs its own biological development through all the stages of human life. These characteristics make it fully reasonable for the state to protect the fetus as a human being—or, at the very least, a new human organism that is naturally developing into a human being. Whether a caterpillar is better understood as a "potential butterfly" or a "butterfly at an early stage of its development," a compelling interest in protecting butterflies would entail a compelling interest in protecting caterpillars.

Principled Consistency

Roe's viability line also contravenes Obergefell's requirement of principled consistency. The reasons underlying the state's compelling interest in protecting the lives of viable fetuses "apply with equal force" to the pre-viable fetuses that Roe and Casey forbid the State to protect. Roe's only justification for the viability line was that "the fetus then presumably has the capability of meaningful life outside the mother's womb." But this capability turns on factors, such as fetal lung development, that are irrelevant to the state's interest in protecting the fetus as new human life. Casey similarly posited that viability establishes "the independent existence of the second life." The State, however, seeks to protect the fetus because it is a second life that can reasonably be regarded as human, whether or not it can already survive independently of its mother.

Nor is there any real substance to the "independent existence" rationale. Under Roe and Casey, a fetus becomes viable as soon as it has a decent chance of survival outside the womb—even though it would probably die if born at that stage in its development. Indeed, for roughly two months after it becomes viable, the fetus is still so premature that living outside the womb would endanger its life. For that reason, laws prohibiting post-viability abortions classify the deliberate induction of labor as an abortion until the fetus can safely live outside the womb. The allegedly "independent" existence of the viable fetus thus entitles it to remain completely dependent on the woman until it can safely be born.

The arbitrariness does not end there. Under Roe and Casey, the fetus qualifies as viable once it might survive indefinitely outside the womb "with artificial aid." In other words, whether a fetus may be killed at will, or instead shielded from elective abortion by state law, turns on medical skill and technology. The same fetus that would be viable in a state-of-the-art hospital may be pre-viable in an ordinary one. "Reasoned judgment" does not support the judicial creation of such bizarre anomalies in the protection of human life.

The final reason why the viability line fails Obergefell's "reasoned judgment" approach takes us back to the Fourteenth Amendment. If birth marks the onset of constitutional personhood, the Amendment implicitly rejects any test that requires a "person" to possess some specific capability or have reached some developmental milestone. Even if a newborn is too premature to survive, everyone agrees that it is a Fourteenth Amendment person and no one—including either parent—can lawfully kill it. Yet the viability line makes eligibility for protection from elective abortion turn on the ability to survive indefinitely outside the womb, which is irrelevant to the Amendment's criterion for personhood. As Justice White put it in dissent in Thornburgh v. ACOG: "the State's interest, if compelling after viability, is equally compelling before viability." Obergefell's "reasoned judgment" test thus leads to the same conclusion as the Glucksberg test: the state may assert a compelling interest in protecting fetal life beginning at conception. Roe and Casey should therefore be overruled.

Editor's Note: The author has submitted an amicus curiae brief in Dobbs v. Jackson Women's Health.