The Volokh Conspiracy

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Framing the Abortion Argument

Thoughts on yesterday's oral argument


It was an absorbing two hours of oral argument—well-argued by the lawyers, and a very engaged and well-prepared bench.  Like Super Bowl matchups, arguments in the Big Cases often disappoint, given the huge buildup beforehand; this one, however, did not—to my ears, anyway.  [If you missed the proceedings, the full audio is available here, and the official transcript here]

It is difficult to say anything truly novel about the issues in the case, which have been picked over and argued about for 50 years or so. Two points that were the focus of the argument, however, struck me as noteworthy.

The first involves the application of the doctrine of stare decisis. This is, obviously, central to the case; Mississippi explicitly requests that the Court overrule the holdings of prior precedent (Roe v. Wade and Planned Parenthood v. Casey) in regard to the existence and scope of a woman's constitutional right to terminate her pregnancy.

This is not unusual; litigants frequently ask the Court to overturn its prior holdings, and the analysis of the question is pretty well-trodden ground, with a pretty well-developed protocol for answering the question. As the Court put it in Casey:

When this Court reexamines a prior holding, its judgment is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case. Thus, for example, we may ask [a] whether the rule has proved to be intolerable simply in defying practical workability; [b] whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation; [c] whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine; or [d] whether facts have so changed or come to be seen so differently, as to have robbed the old rule of significant application or justification.

What does make this case unusual, though, is that the Court has already done the stare decisis analysis in connection with this constitutional right—in Casey itself, where it held, after a lengthy consideration of the question, that "within the bounds of normal stare decisis analysis, and subject to the considerations on which it customarily turns, the stronger argument is for affirming Roe's central holding, with whatever degree of personal reluctance any of us may have, not for overruling it." [The discussion in Casey of how the rule of stare decisis should be applied to the constitutional right recognized in Roe is quite interesting; if you haven't read it, you can find it here]

Thus, as Julie Rinkelman, attorney for the Respondents challenging the Mississippi law, put it, this case is about "precedent on precedent"—precedent squared. Mississippi is not merely asking the Court to discard stare decisis by overturning the substantive holdings of Roe and Casey (that a woman has a constitutional right to terminate a pregnancy pre-viability); it is also asking the court to discard stare decisis by overturning Casey's stare decisis holding (that the "normal stare decisis analysis" does not call for overruling Roe's substantive holding).

To put it differently: the Court must, if it is to overrule Roe and Casey, explain why, under the principles of stare decisis, it is discarding its own prior holding applying the principles of stare decisis to this constitutional right.

It's a little headache-inducing (could we get precedent^3? will the decision in this case be precedent for the use of precedent to determine the use of precedent? and so on)—but I do think framing the central question this way works considerably to Respondent's advantage. To do what Mississippi asks it to do, the Court will have to explain not only why and how Roe got it wrong (and not just wrong, but wrong in a way that justifies tossing it aside), but why and how Casey got it wrong when it held that the principles of stare decisis do not require overturning Roe (and not just wrong, but wrong in a way that justifies our tossing that holding aside as well). I don't think that's going to be too easy to do.

The second noteworthy moment came in a discussion of the source of the underlying constitutional right that the Respondents were asserting. Justice Thomas asked the question this way:

JUSTICE THOMAS: Back to my original question. I know your interest here is in abortion, I understand that, but, if I were to ask you what constitutional right protects the right to abortion, is it privacy? Is it autonomy? What would it be? … What I'm trying to focus on is to lower the level of generality or at least be a little bit more specific. In the old days, we used to say it was a right to privacy that the Court found in the due process, substantive due process clause, okay? So I'm trying to get you to tell me, what are we relying on now? Is it privacy? Is it autonomy? What is it?

I liked Ms. Rikelman's terse reply:

MS. RIKELMAN: It's liberty, Your Honor.

Basta cosi.  That line should appear on t-shirts in the near future.

She continued:

It's the textual protection in the Fourteenth Amendment that a state can't deprive a person of liberty without due process of law, and the Court has interpreted liberty to include the right to make family decisions and the right to physical autonomy …

The question was a little (or more than a little) disingenuous on Justice Thomas' part. It is true that Roe itself was less than transparently clear about precisely where it was situating the constitutional right in question, leading to several decades of wrangling over "penumbral rights" and "shadow rights" and the "right to privacy" and the "right to medical autonomy" and the like.

But Casey – as Justice Thomas, who was on the Court at the time, is surely aware—settled the matter:

Constitutional protection of the woman's decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment. It declares that no State shall "deprive any person of life, liberty, or property, without due process of law." The controlling word in the case before us is "liberty."

The Court's decisions have afforded constitutional protection to personal decisions relating to marriage, procreation, family relationships, child rearing and education, and contraception, and have recognized the right of the individual to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. [Many citations, omitted]

Or as Ms. Rikelman put it later in the argument: "For a state to take control of a woman's body and require that she go through pregnancy and childbirth, with all the physical risks and life-altering consequences that brings, is a fundamental deprivation of her liberty. Preserving a woman's right to make this decision until viability protects her liberty while logically balancing the other interests at stake."

I leave it to others to explain why Justice Thomas would want to obfuscate this question by referring to pre-Casey confusion. Framing it as "liberty"—the way Casey framed it—makes it seem not just reasonable but almost self-evident (and, dare I say it here on the VC, squarely libertarian). Surely most people would agree that we enjoy the "liberty" in this country of making vital, intensely personal, life-altering decisions—when and with whom to start a family, where to live, what religion to adhere to (or not), who to have sex with (or not), whether to send one's children to public or parochial school, and the like—without interference from the state.

It is important, I think, to keep this framing of the issue at the forefront of the argument (and I thought Ms. Rikelman did a very good job of doing that).  Framing matters, in constitutional litigation as much or more than anywhere else—the campaign for the right to marry whomever you wish to picked up vital steam when it was no longer a campaign for "same-sex marriage" but for "marriage equality."

FWIW, my personal prediction is that the Court will not overrule Roe and/or Casey, at least insofar as there will be five votes to re-affirm the existence of a due-process-protected right to decide whether to terminate one's pregnancy. Justice Roberts will succeed at getting persuading at least one of the post-Casey Justices to join in his opinion, which will confirm the existence of the right while simultaneously discarding the "viability" standard for determining when the State's countervailing interest in the life of the fetus arises and giving States more leeway in defining the timing of their prohibitions. Just a guess.