Roe v. Wade is doomed. So says Washington’s latest conventional wisdom. Given the likelihood that President Donald Trump will complete the most conservative Supreme Court majority in generations with his choice to succeed retiring Justice Anthony Kennedy, the forecast makes sense.
But conventional wisdom is so frequently wrong (remember Election Day 2016?) that every eruption is worth a second look.
A right-wing majority that goes looking to kill Roe will discover that the landmark decision has been all but dead for years. Roe was never a robust creature; published in 1973 by a 7-2 majority, it was more interested in the rights of doctors than the privacy of pregnant women, and it limped along on a frail skeleton of first, second and third trimesters. Its author, Justice Harry Blackmun, could hardly have sketched a more ungainly beast. Roe was to constitutional law what the duck-billed platypus is to evolution.
Roe’s weakness was well understood in constitutional circles. So in 1992, three centrist justices performed a sort of taxidermy in a case called Planned Parenthood v. Casey. To preserve the essence of Roe, they replaced its guts with sturdier material.
Casey situated abortion rights more clearly within the broad stream of 14th Amendment protections that cover romantic, family and sexual autonomy. It scrapped Blackmun’s trimesters in favor of infant viability outside the womb. It dialed down reverence for doctors while dialing up awareness of burdens placed on women.
In the process, the Casey majority – which included authors personally opposed to abortion – did something rare in Supreme Court rulings. Rather than simply cite the earlier decision as a precedent, Casey put Roe v. Wade on trial, weighing in detail the arguments for and against overturning the ruling.
After closely examining Roe’s constitutional strengths and vulnerabilities, Casey reaffirmed its core holding. Namely: There are limits on the government’s power to compel a woman to carry a pregnancy to term. In the early days of a pregnancy, the limits are severe, but the government’s power grows as the fetus becomes a viable child. “The woman’s right to terminate her pregnancy before viability is ... a rule of law and a component of liberty we cannot renounce,” the Casey court held.
“On the other side of the equation is the interest of the State in the protection of potential life.”
By remodeling and reaffirming Roe, the Casey court raised the stakes for a future majority opposed to abortion rights. Any court cherishing hopes that its own opinions will long endure must pay due respect to the decisions of the past. Casey dug a second trench around the conditional right to abortion. Ever since, justices wishing to attack Roe must go through Casey, too.
And “there is a limit to the amount of error that can plausibly be imputed to prior Courts,” the Casey justices wrote.
To reject the judgments of not one but two past majorities, fully briefed and separated by many years, would undermine the legitimacy of the Supreme Court, Casey argues, reducing the rule of law to little more than the comings and goings of court personnel.
The controlling opinion in Casey is not light reading, but it is lucid, and anyone who reads it carefully will be struck by the difficulty of separating the limited right to an abortion from other zones of individual privacy recognized by the court over the decades. A future majority intent on overturning Roe and Casey will have to confront the logic that led those earlier courts to the hard decisions they reached. If Americans have rights to choose their romantic and sexual partners and rights to control when and how often they have children, by what constitutional principles do those rights abruptly end in the moment that a sperm cell fertilizes an egg?
I’m not saying that no such principles can be found, only that the search has flummoxed a majority of justices in the past and won’t be easier in the future.
Extracting pre-viability abortion from the fabric of 14th Amendment protections is like extracting one can from the middle of a grocery store pyramid.
Casey also poses the question: To what end? Overturning these precedents would not halt the practice of abortion in the United States. Abortion was legal, and controversial, in many states before 1973, and it would continue to be legal, and controversial, in many states after the Great Reversal. Nothing would be gained in terms of civic unity. But much would be risked in terms of the court’s perceived independence from the elected branches of government. The only thing to be gained is a point for one side in the long debate over the proper role of the judiciary.
Will a new majority decide to chalk up that point? Perhaps - but Casey won’t make it easy for them.