Wednesday, August 17, 2022

Why the Supreme Court is likely to overrule Roe v. Wade

by Frederick Morton
| January 2, 2022 12:00 AM

In December the Supreme Court heard oral arguments on the constitutional validity of the Mississippi law that prohibits abortions after the 15th week of pregnancy. Media attention focused mainly on whether the Court would overturn its own 1973 precedent of Roe v. Wade. Roe struck down existing abortion laws in over 40 states and subsequently set a limit on how early in a pregnancy a state government may enact rules to protect the life of the unborn child — basically not before fetal viability, around the 24th week of pregnancy.

The Court won’t hand down its ruling on Mississippi case until next June. Whatever it decides will again trigger mega-media commentary and heated public debate. In this context, it is helpful to acknowledge a few under-reported facts about the Roe v. Wade ruling, and the Court’s historical role in divisive public policy debates.

First, the Constitution is silent on the subject of abortion. The word does not appear anywhere in the document. The “constitutional right to an abortion” is a judicial creation. In Roe, the majority declared that such a right is protected by “the right to privacy.” These words also do not appear anywhere in the Constitution.

The “right to privacy” was first articulated by the Court in the 1965 case of Griswold v. Connecticut. Where does this right come from? According to the seven-judge majority, it is implied by the “penumbras” and “emanations” of other explicitly protected rights, such as the right against “unreasonable searches and seizures.” This is a plausible argument, but hardly conclusive. Which explains why two justices dissented, arguing that this was simply too weak a legal basis to support the judicial creation of a new constitutional right.

Eight years later, the two dissenters in Roe refused to strike down the Texas abortion law for the same reasons. They described the majority’s rulings as “an exercise in raw judicial power,” arguing that there is “nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant women and, with scarcely any reason or authority for its action.”

Based on their comments during oral arguments six the current nine justices — all of whom have been appointed by Republican presidents — now appear to be ready to accept the dissenters’ arguments in these earlier precedents.

This is the second factual issue that needs clarifying. Much media commentary has asserted that it would be unacceptable for the Supreme Court to overrule one of its own precedents. This view has been given added salience by Justice Sotomayor’s rhetorical question about what might happen if the Court were to overrule Roe v. Wade: “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I don’t see how it is possible.”

While powerful rhetoric, this assertion is contradicted by the Court’s own history. The Supreme Court has often overruled long-established precedents.

The most relevant example is the Court’s landmark 1954 ruling in Brown v. Board of Education. Brown declared state-mandated segregation of the races in public schools to be unconstitutional. Brown is the undisputed turning point in post-war attempt to undo the lingering and damaging effects of African slavery and racial prejudice in American society—a struggle that continues to this day. To do this, the Court had to reverse its own 1896 precedent of Plessy v. Ferguson, which established the constitutional legitimacy of the “separate but equal” policies for the racially segregated schools in the Southern states of the old Confederacy.

During the Great Depression of the 1930s, Democratic President Franklin Roosevelt had to deal with a Supreme Court that was striking down his New Deal policies intended to stimulate the economy and protect workers. The Court’s decisions were all based on earlier precedents. Roosevelt’s 1936 “court packing” plan to enlarge the size the Supreme Court so he could appoint new pro-New Deal justices failed. But over the next five years, a combination of retirements and deaths allowed Roosevelt to appoint seven new justices to the Supreme Court. The new “Roosevelt Court” then over-ruled the earlier precedents and upheld legislation that it was striking down just years before. There is nothing novel about the Supreme Court reversing earlier precedents.

Third and finally, new technologies not available in the 1970s have expanded our knowledge of foetal development. Real-time ultrasound, electronic fetal heart monitoring, immunochemistry, fetoscopy and hysteroscopy have revolutionized pre-natal knowledge and practice. We now know that the unborn experience taste, light, sound and pain, all independently of the mother’s experience.

We now know that most of the characteristic that define an individual as an adult are already determined genetically in the earliest stages of pregnancy. Each human being has 46 chromosomes — 23 from her father and 23 from her mother. At conception, a new constellation of chromosomes occurs — a random blend of those from the mother and the father that determines the unborn child’s eye, hair and skin colors height, and even character traits.

None of this knowledge was available much less considered in the Court’s 1973 Roe decision. This may explain why — especially in the absence of any explicit constitutional rules — several justices commented that crafting some sort of policy compromise would be best left to elected legislators. Such an outcome would understandably be denounced by pro-choice advocates. But it would not be unreasonable given the advances in our knowledge of fetal development. Nor would it be inconsistent with the Supreme Court’s history of reversing precedents.

Frederick Morton is an executive fellow at the School of Public Policy and professor emeritus at the University of Calgary, where he taught both American and Canadian constitutional law. He is now retired and living in Whitefish.

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