Patterico's Pontifications

11/6/2005

Overruling Roe with an Incrementalist Approach

Filed under: Abortion,Judiciary — Patterico @ 10:45 am



Judge Alito has been described in numerous reports as a cautious and conservative jurist, respectful of precedent and deferential to government. What does this signify for the prospects that he might be a vote against Roe v. Wade? It’s tough to say.

Judge Alito’s conservative record strongly suggests that he would be unwilling to read new rights into the Constitution. But his cautiousness also suggests the possibility that he could be reluctant to overturn a precedent like Roe.

Incidentally, the same holds true of John Roberts. Both Roberts and Alito are brilliant and accomplished jurists. In broad strokes, they share President Bush’s philosophy of judicial restraint and conservatism. Conservatives have no business opposing them. But neither judge is a clear vote to overturn Roe.

Even if Justices Alito and Roberts don’t come flying out of the gate signaling a willingness to overturn Roe at the first available opportunity, I don’t think judicial conservatives should panic. Even if that happens, there is still room for hope — even for those of us who agree with Robert Bork that “overturning Roe v. Wade should be the sine qua non of a respectable jurisprudence.”

I take a backseat to no-one in my desire to see the stain of Roe removed from the Court’s set of constitutional precedents. This is primarily a concern for the integrity of constitutional jurisprudence, rather than a simple desire to see an end to abortion on demand. While I think reasonable people can disagree as to whether there should be abortion rights under some circumstances, I don’t think that rational and informed observers can deny two facts.

First, Roe was an act of pure judicial legislation by judges who were more concerned with their policy preferences than with properly interpreting the Constitution. This conclusion is supported by the structure of the decision, which created a trimester framework out of thin air, as well as by historical accounts of how individual Justices came to their decisions (see here and here for examples). The Court’s jurisprudence suffers every day that it continues to defend its decision to resolve an “intensely divisive controversy” without constitutional authority to do so.

Second, the constitutionalization of abortion law by Roe and its progeny has led to a set of abortion rights far more expansive than would otherwise exist. The horror of partial-birth abortion offends the majority of Americans, who also support reasonable restrictions on abortion that have been struck down by the courts, such as spousal notification laws of the sort upheld by Judge Alito in his Casey dissent.

So, I fully agree with Robert Bork: Roe must be overruled. The only question is how. And with the makeup of the Court we have now, my guess is that an incrementalist approach will be required.

Don’t get me wrong. Even if the Court were to reverse Roe in an intensely partisan 5-4 decision achieved simply because Republican presidents managed to get enough conservatives on the Court, that would be a good thing, in my view. However, there would clearly be political downsides, because the nation would likely see such a decision as a disaster. Rather than focus on the original decision’s total lack of legitimacy, the media (and the voting public) would dwell on the fact that the reversal was by a thin margin, without a substantial set of intervening factors explaining the about-face. This could lead to overwhelming election returns against Republicans, weakening the judiciary as a whole for years to come.

But if we allow the change to take place incrementally, it may be acceptable to the public. Rather than exploding Roe with a 5-4 decision — the judicial equivalent of dynamite — it may be preferable to simply let termites eat away at Roe until it collapses on its own.

This is a slight variant on an argument made by my former Con Law professor Jack Balkin (a staunch liberal and abortion-rights supporter), who has argued that “the issue is not whether Roe is overruled. The issue is whether it is hollowed out and made practically irrelevant.” I’d put it a little differently: if, over time, Roe is “hollowed out and made practically irrelevant,” it will become ripe for overruling. And the reversal will come as less of a shock to the country.

The incrementalist approach may take far longer, but if this is the only way to get the job done, then we judicial conservatives may need to reconcile ourselves to reality. Judges like Alito and Roberts may not be ready with the dynamite, but I think they stand ready to start hollowing Roe out. I think small gains may be made this term — but I predict they will be small gains indeed. The results may even end up feeling like a defeat — unless you take the long view.

P.S. Given time, I will do a post in the next few days that examines the two abortion cases likely to be heard by the Court this term, and discusses the likely outcomes given the confirmation of a Justice Alito.

15 Responses to “Overruling Roe with an Incrementalist Approach”

  1. Reestablishing Roe on the firmer ground of
    consent would do all that you argue ought to
    be done.

    “The right to bodily integrity and liberty is a fundamental right, and there are two components: the righ to choose what to do with ones own body, and the right to consent to what is done to ones body by others.”

    “In Roe and subsequent cases, the Court has consistently designated the fetus as a swparate entity from the woman.”

    “…, a woman’s right to terminate her pregnancy stems not only from her right to make a choice about her own body and liberty, but,…, from her right to consent to how the fetus,…, affects her body and her liberty.”

    “…pregnancy is not merely a massive transformation of a woman’s body…, but is a massive transformation that ‘results from’ the fetus….”

    “…(the fetus) cannot be the ‘legal cause’ of pregnancy”

    “…while the fetus grows, it massively transforms a woman’s body:…”

    “The presence (or absence) of consent is the chief characteristic defining any and all legal injuries.”

    :The law already defines a non-consensual pregnancy as injury,….”

    “Bodily integrity and liberty are such fundamental constitutional rights that consent to expose oneself to the risk of injury to ones body or libery does not require that one consent to, or maintain, subsequent injury to ones body or liberty.”

    “The most fundamental right underpinning a woman’s right to choose an abortion is her right to bodily integrity and liberty, including her right to defend herself with deadly force against the serious harm of even a medically normal, non-consensual pregnancy resulting from a fetus.”

    “When a woman does not consent to pregnancy, the fetus situates her similarly to other victims of harm to their bodily integrity and liberty.”

    Similarly situated when she suffers the harm of a non-consensual pregnancy: 1) she is alone, suffering harm, similar to someone who is choking on food; 2) she is suffering harm, resulting from a living organism that’s not under state protection, such as a virus; 3) she is suffering harm, resulting from a living organism that is under state protection, such as state-protected wild-life; 4) she is suffering harm from a mentally incompetent human being.”

    ADDING CONSENT TO CHOICE IN THE ABORTION DEBATE, Eileen McDonagh, SOCIETY, JULY/AUGUST 2005

    Henriet Cousin (ca8dc4)

  2. Swing Roe, sweet Harriet (note: post not really about Harriet Miers per se; but somehow I didn't come up with this headline until just now. Stupid ketamine and gin gimlets)

    Patterico, "Overturning Roe with an Incrementalist Approach":Judge Alito has been described in numerous reports as a cautious and conservative jurist, respectful of precedent and deferential to government. What does this signify for the prosp…

    protein wisdom (c0db44)

  3. Scalia, of course, is way ahead of you, as his dissent in Casey said:

    “It thus appears the mansion of constitutionalized abortion law, constructed overnight in Roe v. Wade, must be disassembled doorjamb by doorjamb…”

    Kevin Murphy (6a7945)

  4. I’d love to see Roe v Wade and the even worse Casey v Planned Parenthood overturned, but if they were, even with a 9-0 decision, the results would hardly be good.

    Overturning those decisions, unless such were done by a method that established the legal personhood of the unborn child, would simply return abortion to state regulation. Several states, including California under Governor Ronald Reagan, had moved to “liberalize” abortion. Hawaii, in an attempt to keep itself from being an abortion Mecca, required a ninety-day residency; New York had more restrictions on abortion than Roe allowed. But access to abortion via the democratic means of getting legislatures to change the laws was clearly on the upswing.

    Since Roe and Casey, the states have been forced to change their abortion laws to comply with those decisions; how many states have laws in place that would make abortion illegal in those states if the two abortion decisions were overturned? And in states which did not have such laws still in place, how many could be counted on to enact legislation which would prohibit abortion?

    The most probable result of an overturning of the abortion decisions would be the effective end of the pro-life movement. States would be able to impose restrictions on late-term abortions fairly easily, but would, for the most part, continue to allow first trimester and early second trimester abortions. They would, in fact, wind up pretty much mirroring American public opinion, which is dramatically opposed to some of the extreme examples, but has enough sympathy for the pregnant woman to accept at least first trimester abortions. The vast majority of abortions would proceed, because they are already first-trimester abortions.

    Indeed, if abortion regulation were returned to the states, and most states severely restricted late term abortions, there would be greater pressure for pregnant women to have abortions early, knowing that the option would be closed to them later. It is entirely possible that the abortion rate could rise, not fall.

    Dana R. Pico (8d0335)

  5. Crosspost from Patterico

    I’d love to see Roe v Wade and the even worse Casey v Planned Parenthood overturned, but if they were, even with a 9-0 decision, the results would hardly be good.

    Common Sense Political Thought (819604)

  6. Roe v. Wade was built brick-by-brick and should be dismantled the same way, because we need to keep the “bricks” that matter. I’m not a Constitutional scholar, but I think the Court should affirm elements of the right to privacy even though some argue this is the cornerstone of Roe.

    Enough homebuilding metaphors.

    DRJ (15ed57)

  7. This is really premature, though. Given that even if Altio gets nominated, and he and Roberts vote against Roe, it would still be 5-4 in favor?

    JeremyR (e9a2a0)

  8. Yes, its premature. You still have a 5-4 pro-Roe majority even assuming Roberts and Alito were anti-Roe votes. And as Patterico points out that’s a fairly large assumption.

    Frankly I don’t think we’ll see it. I’d just like to see the courts stop ramming the rest of the left’s agenda down our throats by judicial fiat. Enough already – let people argue out policy matters in the political arena.

    Dwilkers (a1687a)

  9. But how much would it really matter to the average citizen if Roe v. Wade were overturned tomorrow? Wouldn’t abortion still be widely enough available that it wouldn’t put any great hardship on most women who want abortions?

    If so, then rather than being frightened at the Court decision, I expect most people would be saying, “What’s the big deal?”

    Doc Rampage (47be8d)

  10. Doc

    Exactly right, as it should be.

    Henriet Cousin (ca8dc4)

  11. Don’t know if the DEAD aborted babies would agree with the incrementalist approach.

    Flap

    Flap (cc77c4)

  12. Your scenario assumes both that Republicans will be able to hold enough political power AND be willing to only nominate textualists for the next generation. That won’t happen. Democrats will hold power eventually and/or we will continue to have Souter-style “stealth candidates”. Therefore, it just as (if not more) likely that any incremental steps forward will simply be reversed down the road in order to uphold Roe/Casey. You even have some conservatives signing on to the notion of “super-precident”. Nice analysis, but I’m just not hopeful over the long run.

    Justin Levine (4e5124)

  13. I don’t go in for the conventional fiction that Supreme Court justices are above ruling for partisan or individual reasons. Each of them was put there on the bench for partisan reasons; why should anyone doubt that they’re subject to the same political considerations that any other high-profile member of the Government is?

    So, I would warn this largely conservative Supreme Court that they will break the power of the Republican Party for the next decade and more should they start to question the right to privacy as un-Constitutional. It will drive moderates away in droves; it will cement the GOP’s reputation as bullying rights-strippers (cf. gay marriage); it will detract from their other, vastly more important obligations.

    Our country would be better served by conservative Christianity if that segment of society were more engaged in distinguishing our own ideological genius from, say, the regressive principles of Muslim culture than they are in resisting the benefits of secularism —something that our men and women overseas are dying for.

    Toby Petzold (86d5ac)

  14. Cringe

    First, if you think that Roe is a “stain” upon the Constitution, then you have to be lying when you say that it’s the integrity of the Constitution that is your primary concern, and not the issue of abortion itself. This is further evidenced by the …

    Neognostikos (86d5ac)

  15. Henriet, McDonagh’s thesis is full of errors. The issue is not the woman’s consent, but responsibility for the child’s neediness. Somehow, that issue never seems to have occurred to her.

    Or, one might think of the issue this way:

    Imagine you are a physician whose patient is a blind man. After arriving at your office for his yearly physical, you suggest to him a vitamin regiment in order to maintain his
    health. You offer him what you think is a sample of the vitamin, but it is
    really a powerful aphrodisiac to which the blind man is very inordinately sensitive. You hand him the samples, he swallows one right there in your office, and then moments later
    he has a severe reaction, he cannot help it, but he starts to rape the doctor (the doctor knew this would be reaction and that he would have no control in that case if she accidentally gave him one, but she was careless).
    She kills him in response.

    Did she commit murder or kill in self-defense? I say the former. She caused the condition that made him rape.

    Though, this is a ridiculous depiction of pregnancy anyway.

    Mike (45212b)


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