The Volokh Conspiracy

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Rehnquist, Roberts, and Roe

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My colleague Rick Garnett passed along these thoughts on Dobbs, which I'm posting with his permission.

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The oral arguments, at the Supreme Court, in the Dobbs case, made me think about my old boss, Chief Justice William Rehnquist. He was the Supreme Court's junior member when Roe v. Wade was decided—and, two decades later, the Chief Justice when Roe's "essential holding" was salvaged in Planned Parenthood v. Casey. His role differed in those cases, but his position remained the same. Roe, Rehnquist said in 1973, "partakes more of judicial legislation" than constitutional interpretation. And attempts to save its "essential holding," he said in his 1992 Casey dissent, require "an entirely new method of analysis, without any roots in constitutional law."

Rehnquist's constancy was not mere stubbornness. He thought that the Court's "legitimacy" was not "served by such an effort" to engage in "judicial legislation" to save an old precedent. Making up new rules would create "self-engendered difficulties." The Court could avoid those difficulties, said Rehnquist, by disavowing Roe outright—thus taking the view, "as the Court surely did in both Brown and West Coast Hotel, that the Court's legitimacy is enhanced by faithful interpretation of the Constitution."

Even as the justices explored whether there is an available middle ground, one that might make it possible to preserve precedent, it is all the more clear that Rehnquist's position is the stronger one.

In our constitutional system, overruling precedent is often thought of as a last resort. So, it is unsurprising that at Wednesday's oral argument in Dobbs, Chief Justice Roberts seemed to be exploring the possibility of a middle ground. The Chief Justice recognized that speculations about an unborn child's "viability" make little sense as a constitutional line. But, he asked, is there some other line the Court could draw that would continue to treat abortion as a constitutional right, while at the same time loosening the standard of judicial review of abortion regulations?

At every turn, however, the lawyers representing the abortion providers and the Biden Administration cut the legs out from under any mediating effort. The providers' lawyer, when asked by Justice Gorsuch whether Casey's "undue burden" standard would be a workable solution if untethered from the viability line, answered forthrightly: no, "it would not be workable." And the Solicitor General of the United States was likewise pressed to identify an administrable line other than viability, but offered none. Meanwhile, Mississippi's Solicitor General explained the state's position that only returning the abortion issue to the people would ultimately fix the constitutional problem, give sufficient guidance to the lower courts, and create the breathing space necessary for stable, democratic consequences to be hashed out and take root.

It is not a surprise that efforts to find a middle ground came up empty. Although Mississippi stuck by its alternative argument that its pre-viability abortion prohibition isn't an "undue burden" under Casey, that argument and ones like it have been rejected by every lower court to have considered them, including by judges (like the Fifth Circuit's James Ho in Dobbs itself) whom no one would mistake for being eager to read the Court's abortion precedents any more broadly than they must. That's because, as Sherif Girgis has explained, if Roe and Casey are read fairly, the "right" they recognize is a right to an abortion "at any given point in pregnancy" up to viability—and that's a right with which a 15-week prohibition like Mississippi's simply can't be reconciled.

Of course, Roe and Casey could always be read unfairly—altered post hoc to mean something that the Court deciding them never could have understood itself to have said. But once the Court starts rewriting its precedents, it's no longer deferring to them at all. As Chief Justice Roberts himself memorably put it, "[s]tare decisis is a doctrine of preservation, not of transformation." So, while narrow decisions are often preferable to broad ones, a court's decision ultimately must be not only "narrow," but "right."

Abortion is one of the most contentious issues our society faces, and it is appropriate for the justices to consider carefully whether or not to correct the error that the Court made in Roe. But, as oral argument revealed, if principle rather than politics is to carry the day, the only stable ground available is the one articulated by Justice Kavanaugh: reading the Constitution to be "scrupulously neutral on the question of abortion." In that post-Roe world, "the Constitution is neither pro-life nor pro-choice on the question of abortion," but rather leaves the issue for the people and their elected representatives.

This is exactly the answer championed for decades by Chief Justice Rehnquist. And Rehnquist's sound caution against "self-engendered difficulties" rings just as true in Dobbs as it did in Casey. Attempting again to salvage some "essential holding" from Roe would not protect the Court's institutional legitimacy. To the contrary, as Rehnquist said, by responding to political pressure by adhering to Roe "at all costs" the Court would again seem to be "retreating under fire," thus damaging its legitimacy.

The sure path to institutional legitimacy instead lies in vindicating the judicial role specified by the Constitution: interpreting the law, not making it. And doing so here yields a clear answer: the Constitution the people ratified simply does not accord special protection to abortion.

The wisdom of Chief Justice Rehnquist's position is borne out by another observation the justices should keep in mind: When the Court steps outside the bounds of the Constitution, it hurts not just the Court's institutional legitimacy, but also the American people themselves. Like the Court's other grave constitutional mistakes, Roe has not only harmed our Constitution and laws, it has also led to untold human suffering. It's time for the Court to stop inflicting injury on both the American body politic and the American people themselves by ending its 50-year experiment in managing the people's regulation of abortion.

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  1. Enjoy this battle, disaffected and bitter clingers.

    Your betters will continue to win the culture war.

  2. Upholding the Mississippi 15 week statute, while continuing to recognize abortion rights as fundamental, would at least acknowledge the reliance interests that Roe and Casey have engendered. About 90 percent of elective abortions are performed no later than 15 weeks. That would result in a lesser societal upheaval than a ruling that states are free to criminalize abortion entirely.

    1. They could respect reliance interests AND the Constitution by simply saying, as they overturn Roe, that the ex post facto clause applies to abortions committed in the past. So if you had or performed one while the courts were telling you it was legal, you're on safe ground, just don't do it again.

      1. That is not what reliance interest means. One in four American women of childbearing age has had or will have an abortion during her lifetime. Society has structured itself around the availability of abortions.

        1. " Society has structured itself around the availability of abortions."

          If that's the test, then certainly Brown v Board of Education reached the wrong decision. Society had structured itself around separate but equal far more than abortion.

    2. Then next year some state moves the line to 14 weeks to see if they can wring a little more out of the court.

      1. Which is why it's best that the Court just admit they made a mistake pretending this was a constitutional right, and let the legislatures and the voters hash it out.

    3. I think that it’s a question of reversing Roe gradually, over time, versus reversing it all in one go. I don’t think that under Chief Justice Roberts’ approach, the line would stay at 15 weeks. But I do suspect that if he could have his way, the Court would wait several years and a couple of changes of Justices before dipping into the first trimester. And if Democrats in power brought more liberal Justices onto the Court, as would be quite plausible to happen during that time, the line would stay.

  3. RE: "The Chief Justice recognized that speculations about an unborn child's "viability" make little sense as a constitutional line. But, he asked, is there some other line the Court could draw that would continue to treat abortion as a constitutional right,..."

    How about the line at the point in time when completing the pregnancy and giving birth would pose a significant level of pain, expense, trauma, injury, long-term damage, and risk of death, comparable to any other form of life-sustaining or life-saving sharing of, or access to, the inside of the patient's body? A bone-marrow transplant, for instance, which no one in USA would ever think of allowing any government to force someone to participate in. Let's draw a line that any pregnancy whose completion and delivery would cause greater pain, expense, ... etc. than donating bone marrow for a transplant, may be aborted at the patient's request without interference by any state, municipal, Federal, or other, government. Any pregnancy whose completion and delivery would be easier on the patient than donating bone-marrow, let the governments regulate or ban.

  4. "and it is appropriate for the justices to consider carefully whether or not to correct the error that the Court made in Roe."

    And THAT is why originalism is dying even as it should be triumphing. Because legal scholars and judges actually consider it an open question whether legal errors should be corrected.

    I've got to ask: Did any of the justices swear an oath to precedent? Not that I've heard.

    1. As always, Brett Dunning-Krugers the discussion. Yes, it is indeed an open question whether legal errors should be corrected. Brett "solves" the principle of stare decisis by expressing incredulity at the very concept.

      1. Law is basically the only field that holds that mistakes should not be corrected. I question whether it should be the exception.

        Dunning Kruger would imply that I didn't know it was an exception. Thinking the law should be different is not ignorance.

        1. Your views on stare decisis could be enlightened by a little study of Chesterton's Fence.

  5. Roberts was clearly aiming for a “we need not decide whether to overrule Roe because this law can be upheld within it” approach, especially with his bomb that according go a statemebt by Justice Blackmun uin his private papers the viability line in Roe was dicta.

    But it didn’t sound like any other of the Justices were interested in his position. He might be able to persuade one other. But from the oral argument it looks like a 5-1-3 decision with only Chief Justice Roberts supporting the middle route.

  6. I think Roberts’ basic question does need an answer. The Court has been split roughly 5-4 on the issue for decades. What happens if the Court simply flip-floos every time a new Justice moves the majority from 5-4 in one direction to 5-4 in the other? Does the Court have no responsibility to consider its role as an institution?

    Perhaps Justice Kavanaugh is right that taking no position should be seen as true neutrality because the range of possible action ought to be extended to declaring fetal personhood and a constitutionally required abortion ban, and within that spectrum saying the constitution has no opinion on abortion represents the middle course.

    The problem is that in the last 50 years of jurisprudence, no justice has supported the constitution-bans-abortion position, so it doesn’t seem to be a realistic one. Instead, for 50 years, Justices have said either that there’s a constitutional right to abortion or the constitution takes no position.

    What happens if the current majority appoints a new Justice, and a Democratic President then appoints a Justice or two to replace a couple of conservatives? Can the Court survive continual flip-flopping?

    The issue here is not the Court overruling a precedent, that’s been done before. It’s REPRATEDLY overruling precedents every time a new Justice comes on board. That’s the concern.

    After all, the minute there’s a liberal majority they can just say the conservatives were egregiously wrong. Etc. Lather, rinse, repeat.

    1. And in the meantime, millions of lives will have been saved.

      1. And millions of women will be forced back into the kitchen to serve the patriarchy, where they belong.

        Right?

        What better way to control those pesky bitches than impregnating them and forcing them to become mothers while you skip off to dick another one!

  7. I find it hilarious that Rehnquist cited West Coast Hotel, even though Lochner got it right according to any original understanding of the constitution and the 14th amendment, and West Coast Hotel was wrong to overturn it.

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