Abortion: Can the Supreme Court find a middle way on the always controversial issue?

Controversy is already swirling around a Supreme Court that could overturn Roe v. Wade and make abortion a state by state issue.  The decision might hinge on the esoteric legal terms, holdings and dictum. Conceivably, there is a middle way where abortion is a right that can be regulated by the states, if only we can find it.

Earlier this week, the Supreme Court heard oral arguments on a case with the potential to overturn Roe v. Wade, the landmark 1973 decision that upheld a woman’s right to abortion, claiming it was enshrined in the Constitution under a more general Right to Privacy.  The case in question today concerns a Mississippi law that banned abortions after 15 weeks, and, perhaps needless to say, has already sparked controversy long before a decision has been issued.  “This is an attack on women to make their own health-care decisions. Their families, it’s up to them,” explained Senator Patty Murray, former chair of the Democratic Senatorial Campaign Committee. “To have politicians decide to me is just frightening.”  Her colleague, Senator Jeanne Shaheen went even further, promising a “revolution” if the decision doesn’t go their way.  “I think if you want to see a revolution go ahead, outlaw Roe v. Wade and see what the response is of the public, particularly young people,” she said. “Because I think that will not be acceptable to young women or young men.”

Senator Shaheen followed up with a separate statement conjuring up the specter of a return to back alley abortions.  “I’ve lived the consequences of the pre-Roe era,” she said. “I had friends in college who were forced to seek dangerous back alley abortions because women across the country were denied access to critical family planning services. We cannot allow Republican lawmakers to turn back the clock on women’s reproductive health and rights, which is precisely what the Mississippi case seeks to do. It is time to sound the alarm.”  Elyssa Spitzer and Osub Ahmed, writing for The Hill, offered a more sober analysis, believing the Supreme Court Justices must see through the “fictitious claims” n the case. These so-called claims include a belief that birth control is “effectively universally available and free and that women have achieved essentially equal economic security and success.  This, the state argues, renders abortion care no longer necessary, so the court should stop recognizing it as a constitutional right.”  The authors are concerned that the court has adopted “specious facts as true before, notably in the context of voting rights, to devastating effect; it must not do so again.”  Ultimately, Ms. Spitzer and Ahmed conclude, “The court must reject Mississippi’s fictions or risk undoing nearly 50 years of precedent based on assertions that are sensational and fringe. Respect for facts, respect for precedent, and respect for individuals’ reproductive autonomy make clear that the right to abortion must stand.”

Conservatives, of course, have a very different perspective.  Simply put, the right of the unborn to life supersedes the right of a woman to choose.  For example, at least 38 states have fetal homicide laws, where if you kill an unborn baby in the womb outside of an abortion, you can be charged with murder or manslaughter.  In at least 29 states, these laws apply at the earliest stages of pregnancy including “any state of gestation/development,” “conception,” “fertilization” or “post-fertilization.”  There is a federal law as well, the Unborn Victims of Violence Act of 2004, that recognizes a fetus or embryo as a legal victim if the unborn child suffers injury or death during the commission of over 60 violent crimes.  The unborn child is defined as “a member of the species Homo sapiens, at any stage of development, who is carried in the womb.”

Further, conservatives believe that Roe v. Wade was wrongly decided and there is no right to abortion enshrined in the Constitution.  They object to the idea that rights can be found in the “penumbras” of other rights, a concept officially codified by the Supreme Court eight years before in Griswold v. Connecticut, though the term had been in use since at least 1916.   The law in question at that time was a prohibition against contraception passed in 1879.  The court ruled the law unconstitutional based on a “marital right to privacy,” and a more generalized one rooted in First, Third, Fourth, and Fifth Amendments.  “The First Amendment has a penumbra where privacy is protected from governmental intrusion,” Justice William O. Douglas wrote in the 7-2 majority decision. These penumbras were “formed by emanations from those guarantees that help give them life and substance.” He concluded that the Right to Privacy, “While it is not expressly included in the First Amendment, its existence is necessary in making the express guarantees fully meaningful.”

Justice Harry Blackmun built on this reasoning in Roe v. Wade, writing that “This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or…in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”  Even then, however, the ruling was not so simple as a blanket right to terminate a pregnancy at any time.  The same decision also found that “A State may properly assert important interests in safeguarding health, maintaining medical standards, and in protecting potential life…We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.”  Ultimately, “We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, in this point in the development of man’s knowledge, is not in a position to speculate as to the answer.”  The decision was issued with an accompanying “dicta,” that  is a non-legally binding standard, that identified “viability” as a potential cut off point for when life begins.  Before the fetus is viable, it can be aborted.  After, it cannot.  Viability was understood to be at around 28 weeks into the pregnancy given 1973 technology.  This resulted in abortion being legal in the first trimester, allowed regulations the protected women’s health in the second, and outright prohibitions in the third.

This reasoning was further revised in Planned Parenthood v. Casey in 1992.  The law in question was the Pennsylvania Abortion Control Act of 1992 which included provisions for Informed Consent, Spousal Notice, Parental Consent, plus definitions of Medical Emergencies and Reporting Requirements for abortion providers.  The plaintiff’s argued that these restrictions were unconstitutional after the Roe v. Wade precedent.  At the time, the court was split on the outcome, issuing only a plurality opinion shared by Justices Sandra Day O’Connor, David Souter, and Anthony Kennedy.  They reasoned that the decision in Roe v. Wade has “engendered disapproval,” but “it has not been unworkable. An entire generation has come of age free to assume Roe’s concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions; no erosion of principle going to liberty or personal autonomy has left Roe’s central holding a doctrinal remnant.”

The plurality ruling introduced two new key concepts, a new dicta for viability based on the latest technology that bypassed trimesters in favor of 23-24 weeks, and the idea of an undue burden.  This undue burden concept meant that any law with the “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus” would be unconstitutational.  The two together meant that abortion could be broadly restricted after 23-24 weeks, but prior to that lawmakers must take care to ensure women have (relatively) easy access to abortion and that no law substantially hinders that access.  This framework allowed some medically relevant restrictions, as the “state has a legitimate interest in seeing to it that abortion, like any other medical procedure, is peformed under circumstances that insure the maximum safety of the patients,” while disallowing any that placed “a substantial obstacle in the path of a womans choice.”

Fast forward to the case before the court today, and the meaning of the dicta itself is taking center stage.  First a little background, legal scholars differentiate between a holding and a dictum.  Judith M. Stinson, a Clinical Professor of Law at the Sandra Day O’Connor College of Law at Arizona State University writes that “The holding/dictum distinction has been debated for decades. There is no universal agreement on the definitions for these terms, but most typically ‘holding’ is defined as that portion of a legal opinion that is ‘necessary to the result.’ Dictum, on the other hand, is anything that is not a holding.”  Despite these differences of opinion, “our system of stare decisis [precedents] relies on determinate holdings. Therefore, it is important for lawyers to be able to identify a case’s holding and, as a corollary, identify its dicta.”  In abortion law, the holding is the right to an abortion under the right to privacy, but the dicta is the viability standard.

Chief Justice Roberts seemed to make precisely this point when questioning the plaintiffs during oral arguments on Wednesday.  “Viability, it seems to me, doesn’t have anything to do with choice. If it really is an issue about choice, why is 15 weeks not enough time?” he asked Julie Rikelman, the lawyer representing the only abortion clinic in Mississippi.  In other words, the court could rule to uphold the right enshrined in Roe v. Wade while allowing the states to develop their own viability standards.  Of course, what those standards may look like and whether a state might determine viability occurs at conception itself remains a concern for abortion rights advocates.  Ms. Rikelman brought this up directly when replying to Chief Justice Roberts, saying “without viability there will be no stopping point. States will rush to ban abortion at every point in pregnancy.”

Court observers generally agree that Chief Justice Robert’s line of questioning is an attempt to carve out a middle ground, one where abortion remains a constitutional right, but the states have more control over how and when that right is exercised within their borders.  More liberal states can continue to offer almost unfettered access, while more conservative states can place restrictions even within the first trimester.  This approach has the obvious benefit of re-introducing democratic action into the debate, taking an issue from the purview of the courts to the far more rough and tumble world of the states, where new laws can be passed quickly and there is no concept of precedent.  If a state government were to go too far in either direction, they can be held to account by the voters and new leadership can be voted in.

At the same time, some of these same court observers are convinced that a majority already exists on the court to overturn Roe v. Wade entirely.  They believe Justices Clarence Thomas, Brett Kavanaugh, Samuel Alito, and Neil Gorsuch are already firm votes to overturn, while Amy Coney Barret is highly probable, giving them a 5-4 majority even without the Chief Justice.  Justice Kavanaugh suggested he was leaning in this direction within a line of questioning regarding the nature of precedents.  “As I’ve looked at it, and the history of how the court applied stare decisis, and when you really dig into it, history tells somewhat a different story, I think, than what is sometimes assumed,” he said. “If you think about some of the most important cases, some of the most consequential cases in this court’s history, there’s a string of them where the cases overruled precedent.”  These cases include racial segregation, voting rights, regulations on business, criminal justice, and same-sex couples.  “That’s a list, and I can go on — and those are some of the most consequential and important in the court’s history — the court overruled precedent,” Justice Kavanaugh continued.  “If the court had done that in those cases, you know, the country would be a much different place.”

The Roberts court, however, has rarely been predictable, issuing decisions that have infuriated both liberals and conservatives in almost equal measure, often taking a middle road or intentionally avoiding dramatic rulings.  Attempting to decipher an actual ruling from oral arguments has always been a process akin to reading tea leaves or tarot cards, perhaps now more so than ever.  It wouldn’t be surprising if the court ultimately takes exactly the middle position:  Abortion remains a legal right, but the states can define viability as they wish.  Nor would it be surprising if that position failed to satisfy extremes on either side of the debate, but that might not be a bad thing either.  Love it or hate it, abortion isn’t going away and there is some merit to claims that entire generations have grown up with the right to abortion.  Eliminating it would be a radical upheaval.  Limiting it on a state by state basis has appeal if only we can be objective enough see it, not that I am holding my breath for that either.