The rejection of a “compelling state interest” test will remove abortion from national politics.
A simple Baltimore lawyer here tenders a short opinion to dispose of Dobbs v. Jackson Women’s Health Organization, the abortion case from Mississippi in oral arguments before the Supreme Court today.
This case presents the question: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.” It involves a limitation of abortion after 15 weeks of pregnancy. Similar limitations are found rational in many nations including France and Germany with their 12-week cutoff point. In Roe v. Wade, we said that states could limit second-trimester abortions if there was a rational basis to do so, but in the companion case of Doe v. Bolton, decided on the same day, we effectively applied a “compelling state interest” test.
We can dispose of this case by overruling Doe v. Bolton and Casey, but the avoidance of further controversy and confusion makes it desirable that we dispose of Roe also, thus withdrawing the Court from an area of public policy that we should not have entered in the first place and allowing further discussion to be divorced from claims of absolute right not inducing tolerance.
Five tests are conventionally used to justify overrulings: quality of reasoning (ever-shifting in this case); workability (belied by the constant flow of litigation over the “undue burden” test); inconsistency with prior law (patent in light of state legislation as of 1973); reliance (scarcely present, despite Casey, in view of Casey’s concession that “reproductive planning could take almost immediate account of any sudden restoration of state authority to ban abortions,” a conclusion reinforced by the two-thirds drop in births to teenagers following the withdrawal of 18 years of guaranteed AFDC payments by the Welfare Reform Act of 1996); and finally, and most importantly, as stated in Casey, “whether Roe’s premises of fact have so far changed to render its central holding irrelevant or unjustifiable” and whether an overruling decision would provide “a response to facts that the country would understand but which the court of an earlier day as its own declarations disclosed had not been able to perceive.”
These standards for overruling are now more than fully met. The Roe court did not even consider the potential effect of abortion on-demand on sexual mores, unwanted pregnancies, and births out of wedlock. It recognized that anti-abortion statutes might be the “product of a Victorian social concern to discourage illicit sexual conduct” but declared “Texas does not advance this justification in the present cases and it appears that no court or commentator has taken the argument seriously. The appellants and amici contend moreover that this is not a proper state purpose at all.” So much for the mostly religious lawgivers memorialized in the frieze at the top of the Supreme Court building and Justice Holmes’ observation that “the law is the external deposit of our moral life.”
It is nonetheless the duty of the Court to consider not only the state’s actual arguments but those it might have made, lest the inadequacies of a single lawyer deform the Constitution. As stated in Flemming v. Nestor, 363 U.S.603 (1960): “we cannot with confidence reject all those alternatives which imaginativeness might bring to mind save that one which might require invalidation of the statute.”
Instead, the Roe court, excluding the possible effect of its decision on promiscuous sexual behavior and increased pregnancies and births out of wedlock, made opposite assumptions. It alluded to “concerns about population growth, pollution, poverty and racial overtones.” The Second Circuit, invalidating a Connecticut statute, postulated that “population growth must be restricted not enhanced and thus the state interest in a pro-natalist statute such as this is limited,” citing the Rockefeller Commission report on “Population Growth and the American Future” (1971).
Subsequent research by the present secretary of the Treasury, Janet Yellen, and her Nobel-prize-winning economist husband, George Akerlof, which appeared in the Quarterly Journal of Economics and the Brookings Review in 1996, made clear that Roe had dynamic effects on American society, legitimating free love and the hookup culture by providing what looked like an assured back-up to birth control pills.
Thus the percentage of births to unwed mothers increased from 5.7 percent in 1970, when birth control pills were already in wide use, to 29 percent in 2018. Among black Americans, whose out of wedlock births were of great concern to “birth controllers,” the percentage of births out of wedlock increased from 38 percent in 1970 to 71 percent in 2018. Similarly, the “deal with it” syndrome that abortion on-demand produced among consorts caused the percentages of marriages to those pregnant out of wedlock (“shotgun weddings”) to fall from 43 percent in 1970 to 9 percent in 2018.
“Inability to provide for the nurture and care of the infant is a cruelty to the child and an anguish to the parent,” the well-intentioned Justice Harlan stated in concurring in Roe. But after 50 years, there is much more such cruelty and anguish.
This Court, like the president and Congress, is subject to checks and balances. The confirmation process is one of these and can be given effect after 48 years. Several decisions have been overruled after long periods, including Lochner v. New York (work hours) after 50 years; Adkins v. Children’s Hospital (minimum wage) after 14 years; Plessy v. Ferguson (segregation) after 58 years; Bowers v. Hardwick (sodomy) after 18 years; Baker v. Nelson (homosexual marriage) after 43 years; and Korematsu v. United States (racial distinctions) after 74 years.
The public will now understand what the Court did not in Casey when it, echoing Justice Wayne’s concurring opinion in Dred Scott, called “the contending sides to end their division by accepting a common mandate rooted in the Constitution.” Dred Scott failed because the fugitive slave provisions of the Constitution and the Compromise of 1850 rendered Northern states complicit in the permissiveness of the South. Casey failed for the same reason, by imposing coastal rules on “flyover” country.
Our decision reversing the Fifth Circuit judgment is of little direct consequence. Some four percent of abortions per year are performed after the 15th week, many in states that will continue to have liberal abortion laws. But our decision will send a powerful message to young women and their consorts that abortion is no longer a sure thing and that they should choose sexual partners more carefully than at present. The rejection of a “compelling state interest” test will remove abortion from national politics as in Western Europe and will restore the American judiciary to what Aristotle and Aquinas regarded as judges’ proper function: “corrective justice” vindicating agreed settlements, not “distributive justice” changing agreed rules, which is the prerogative of the ruler in authoritarian states and the legislatures in democratic ones.
In Ferguson v. Skrupa, 372 U.S. 726 (1963), Mr. Justice Black stated for a unanimous court: “We emphatically refuse to go back to the time when courts used the Due Process clause ‘to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought.’” To “business and industrial” we add “social,” thus definitively repudiating Dred Scott, the first adventure in substantive due process. We justify this overruling decision not merely by the prolix five tests of the legal academy, but in the words of Fiorello La Guardia: “When we make a mistake, it’s a beaut.”
The judgment is reversed.
George Liebmann is the president of the Library Company of the Baltimore Bar and the author of The Common Law Tradition: A Collective Portrait of Five Legal Scholars (Transaction Books) among other works.