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roe v wade

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A “Rogue Court”?: Integrity and Majority Rule

photograph of curtain drawn to inner chamber

Ever since the decision in Dobbs was handed down, there’s been a great deal of ink spilled about the Supreme Court “going rogue.” Whatever image those words are meant to conjure, it can’t be that simply by contradicting popular opinion justices act wrongly. Indeed, to do its job and fulfill its essential function – safeguarding individual rights and acting as legal backstop and ultimate umpire for conflicting claims to basic protection – the High Court must be able to act in opposition to the majority’s will. We should all be relieved that when it comes to who receives a fair trial or who may cast a ballot, we don’t simply put the matter to a vote (or do we?).

We think that the fundamental liberties that citizens enjoy are not the kind of things that should expand and contract with the ebb and flow of favorable representation in Congress.

As Evan Arnet argued yesterday, sometimes the sausage that our legislature – held hostage by party politics – produces simply won’t do. Everything can’t depend on a mere up or down vote; some things must be guaranteed. Enter: The Supreme Court.

In no small part, our need for the High Court to chaperone the legislature stems from the fact that the masses are deeply misguided when it comes to the facts on the ground (see The New York Times’s recent moderated discussion with pro-life and pro-choice focus groups where multiple respondents on both sides thought that abortion was more physically dangerous than childbirth for a woman and estimated that 30-40% of abortions take place after the first trimester – when in reality it’s less than 10%). What we require is a final ruling made by legal experts standing above the political fray who see the matter clearly and can anticipate the legal implications that we mere mortals hardly perceive.

So rather than the common complaint about the justices being out of step with the court of public opinion, the real trouble with the Courts’ recent pronouncements must lie elsewhere

– perhaps in its shifting attitude toward the separation of church and state (Kennedy v. Bremerton School District), toward precedent (Dobbs), and toward interpretive consistency (Bruen).

These are all significant complaints to be sure, and each warrants careful consideration. But rather than taking up these criticisms in isolation, I’d like to point to an overarching picture that paints these seemingly disparate complaints as a constellation of related concerns. The public’s historic lack of trust in the Supreme Court may indicate, as Ronald Dworkin once suggested, that “Integrity is our Neptune” – a celestial body we discover only by first recognizing that it’s missing.

So, what is integrity? Simply put, integrity demands that the law be created and adjudicated in a consistent way. Dworkin insists that proper legal interpretation requires commitment to moral coherence. We should strive to comprehend our legislative and judicial history as one of continuity. Judging, Dworkin claims, is not unlike being a writer of a chain novel. You’re tasked with interpreting the major, minor, and latent themes running through the narrative to date and contributing to that tale in a way that does honor to what’s come before – you situate decisions so as to present our legal history in the best possible light.

Ultimately, integrity represents a compromise between the weightlessness of a living constitution and tyrannical rule of a dead hand from a bygone era.

Both of these can devolve into judicial activism and thus commit the gravest of grave sins: legislating from the bench – either by a complete reimagining of the Constitution and our legal history, or by an outright refusal to appreciate the needs of our evolving and ongoing story.

What makes integrity important? The Supreme Court’s legitimacy relies on appearances. We expect justices to rule according to the law and not their politics. The trouble is that it’s extremely difficult to disentangle the two. Do one’s legal convictions shape their political leanings, or does one’s politics dictate their judicial positions? Demonstrating that fidelity to law comes before party loyalty requires a kind of sacred devotion to impartiality and detached public justification (or perhaps simply a renewed commitment to better covering one’s tracks). For if judicial review – the power of unelected judges to strike down the popular will – is exposed as nothing more than partisan warfare by other means, then the game is lost and the lie of democratic representation is exposed. The emperor has no clothes.

How do we know when the clothes (integrity) aren’t there? Dworkin offers a thought experiment: Imagine a law that made abortion criminal for women born in even years but permissible for those born in odd ones. Such a policy might accommodate the 60/40 split in public opinion on the issue.

Allowing each of two groups to choose some part of the law of abortion, in proportion to their numbers, is fairer (in our sense) than the winner-take-all scheme our instincts prefer, which denies many people any influence at all over an issue they think desperately important.

Still, Dworkin thinks, there’s something that rubs us the wrong way about such a compromise. We seem to reject the Solomonic solution of simply cutting down the middle and giving both sides a little of what they want. So what explains our discomfort? Why is this kind of “fairness” not enough? Why do we turn our nose up at “checkerboard solutions” like this one?

Certainly, the decision to kick the abortion question to the state legislatures looks an awful lot like a checkerboard solution – and one that sits uncomfortably with both sides.

It’s hard to see how that ruling fits within our judicial history that treats similar rights (similar to either the right to reproductive autonomy or the rights of the fetus) as national concerns. Such a ruling appears a significant break with traditional practice.

Just last week, Benjamin Rossi gestured at several potential futures for the current political compromise neither side finds tolerable. Pro-life advocates motivated by Body Count Reasoning (explained here by Dustin Crummett) are unlikely to be satisfied with half-measures. Meanwhile, pro-choice proponents decry the unequal burdens arbitrarily foisted upon residents of different states concerning a basic good: health. (Jim Harbaugh can encourage his players to encourage their partners to go ahead with an unplanned pregnancy and offer to adopt all those children all he wants, but the fact remains that pregnancy is not without risk and the decision to go forward is not simply about whether one has “the means or the wherewithal.”)

Unfortunately, whichever way the Dobbs fallout is eventually resolved is likely irrelevant to the larger problem. Unless and until we begin to conceive of our legislative and judicial history as a shared project of public justification, there will be no restoring public faith. Without courts committed to something like Dworkin’s idea of integrity, even term limits cannot save us.

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Nationwide Prohibition: The Next Step for the Anti-Abortion Movement?

image of 1919 NYT front page with map of prohibition states

In 1919, on the eve of the passage of the Eighteenth Amendment prohibiting the manufacture and sale of alcohol, twenty-three states had already voted themselves “dry.” Yet for the temperance movement, the piecemeal, state-by-state approach to prohibition was never more than a tactical gambit; the ultimate goal was always national in scope. In the wake of the U.S. Supreme Court’s decision to revoke its recognition of a constitutional abortion right, twenty-six states are likely to severely restrict or outright ban abortion.

But as with the temperance movement, there is every reason to think that the anti-abortion movement will not rest content with the devolution of abortion policy to the states

— at least, not insofar as devolution would allow the decriminalization, legalization, or even constitutional protection of abortion in many states. Indeed, The Washington Post recently reported that anti-abortion activists and Republican legislators have started mobilizing around federal legislation to outlaw abortion after six weeks of pregnancy, and in late June, Mike Pence called on anti-abortion activists to work to ensure that “the sanctity of life is restored to the center of American law in every state in the land.” In this column, I will explain why and how the anti-abortion movement, with help from the GOP, may seek to install a nationwide abortion policy.

Within the context of our constitutional order, the moral logic of the anti-abortion movement militates strongly against allowing the “people of the various States” to “evaluate [the interests of a woman who wants an abortion and the state’s interest in ‘potential life’] differently,” as the majority opinion in Dobbs put it. The anti-abortion movement believes that abortion violates a basic right to life. With respect to fundamental individual rights, our Constitution tends to favor not allowing a majority vote in each state to determine whether or not these rights will be respected in that state — though states may decide to protect these rights more robustly than the federal “floor” requires. Thus, the rights-talk employed by the anti-abortion movement strongly suggests that abortion policy should be national.

On a more pragmatic note, the availability of abortion pills and abortion clinics in neighboring states may undermine the efforts of states hostile to abortion to restrict their citizens’ access to the procedure.

For example, some studies suggest that once Texas banned abortion after around six weeks of pregnancy, abortions among Texas women did not decline as sharply as previously thought because many traveled to clinics in nearby states or ordered abortion pills online. Even with twenty-six states banning abortion, there is no going back to the pre-Roe days — and anti-abortion activists know it.

Thus, a national abortion policy is more consistent with anti-abortion ideology and could overcome the practical limitations of a twenty-six state ban. There are four main avenues for instituting such a policy.

THE FIRST is to pass abortion bans in every state legislature. Pence’s remarks suggest that this is the policy favored by at least some in the anti-abortion movement. But this strategy has at least three drawbacks from the anti-abortion perspective. First, state houses in very liberal states are very unlikely to support anti-abortion legislation, and unlike the U.S. Congress, they are reliably pro-abortion across time. Second, a state-by-state approach is unlikely to issue in a uniform national policy, particularly not one that is as stringent as anti-abortion activists would prefer. Finally, this approach may be unsatisfactory to that portion of the anti-abortion movement that seeks to enshrine the fetal right to life as a constitutional right.

THE SECOND OPTION is to pass an anti-abortion bill in the U.S. Congress. Because Congress can act only under the authority of one of its enumerated powers, it would have to select an appropriate constitutional “hook” that plausibly empowers it to make law respecting abortion. Two possible powers are the Commerce Clause — abortion is a service sold in interstate commerce — and Section Five of the Fourteenth Amendment, which gives Congress the power to enforce Section One of that amendment through appropriate legislation. Ironically, the latter approach would require Congress to stake out the position that the fetal right to life is a fundamental right protected by Section One’s Due Process Clause — the sort of right that the right to abortion was but is no longer following Dobbs. A major advantage of the general congressional approach is that all it requires is a majority vote in the House and sixty Senate votes. That seems like a much easier lift than the other political options discussed in this column. On the other hand, the relative impermanence of this solution may worry some activists: any congressional act is, of course, potentially subject to repeal. Furthermore, the political wrangling necessary to pass a bill may ultimately issue in a watered-down policy.

THE THIRD OPTION is to try to obtain recognition of the fetal right to life as a constitutionally-protected right through the courts. The major problem with this approach is not that the U.S. Supreme Court is unlikely to recognize a fetal right to life as one of the unenumerated rights protected by the Fourteenth Amendment’s Due Process Clause. Based on the majority opinion’s reading of the common law and nineteenth-century state statutes in Dobbs, the conservative justices may welcome such an argument.

Instead, the problem is that recognition of this right probably would not empower the Court to require states to make abortion illegal, or empower Congress to pass legislation requiring the same.

The reason is the so-called “state action” doctrine: the fairly well-established principle that the Fourteenth Amendment protects against state-caused harms, not harms caused by private actors. If the Supreme Court were to recognize a fetal right to life, it could on that basis prevent state institutions from performing abortions, and perhaps even private institutions that receive state or federal funding. But it could not prevent a private clinic from performing abortions.

Ironically, it has always been the more liberal justices who have played fast and loose with the state action doctrine; in United States v. Guest (1966), for example, a majority of the Warren Court concluded that the Fourteenth Amendment empowers Congress to outlaw purely private discrimination in some circumstances. In United States v. Morrison (2000), five conservative justices — including Justice Thomas — disavowed Guest in ruling that Congress did not have the power under the Fourteenth Amendment to enact the Violence Against Women Act, which allowed victims of gender-motivated violence to sue perpetrators in federal court. Such violence by private actors, the Court held, did not fall within the purview of the Fourteenth Amendment’s grant of congressional power. Could today’s conservative Court revive Guest in order to affirmatively require states to prevent private actors from violating fetus’ rights to life? Perhaps the Court will suddenly find itself less impressed with the moral distinction between act and omission, or between the state doing harm rather than allowing harm to occur.

THE FINAL OPTION is to pursue a constitutional amendment enshrining the fetal right to life. The major disadvantage of this approach is political: any constitutional amendment must garner a two-thirds majority vote in the House and Senate, plus ratification by at least thirty-eight states. Even if all twenty-nine states that have demonstrated “hostility” to abortion rights were to ratify such an amendment, that would still be nine states short. But to paraphrase Harold Macmillan, the essence of politics is events; it is not outside the realm of possibility that events could change the political complexion of nine states in a more anti-abortion direction. A major advantage of this approach is that no pre-existing limitation on Congress’s power, such as the state action doctrine, can constrain the reach of a new amendment. In addition, once a constitutional amendment is passed, it can only be repealed by another amendment. Only one amendment — the Eighteenth — has ever been repealed.

Although it seems highly likely that the anti-abortion movement will pursue at least one of these options, advocates might do well to consider the fate of the temperance movement after national prohibition was passed. Where once temperance, true to its name, had denoted to the public mind something like moderation in alcohol consumption, with the nationwide coercive imposition of prohibition it came to be associated with fanaticism and even bigotry. After the Eighteenth Amendment was repealed in 1933, the temperance movement disappeared from the political scene, likely never to return. For better or worse, Americans are, most of them, moderates; they recoil from moral extremism. Moreover, a majority say that abortion should be legal at least in the first trimester. Thus, in seeking a hardline national policy, the anti-abortion movement may very well overplay its hand.

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Underexplained Concepts in the Abortion Debate

photograph of pro-life protesters with religious abortion signs

In my previous column, I tried to demonstrate that some concepts in the abortion debate, namely, the concept of moral personhood and potential lives, are often underexplained. When we analyze these concepts, we find that they are ambiguous and our attempts to define them may significantly shape our views about abortion.

The concepts I focused on previously were strictly about debates regarding whether abortion is immoral. Today, I want to change my focus and strictly consider concepts that apply directly to debates about whether or not abortion ought to be legal.

The Purpose of the Law

A common refrain among advocates of reproductive choice is that you cannot eliminate abortions by outlawing them, you merely eliminate safe abortions. Indeed, some data even suggest that banning abortions does not reduce their occurrence.

So advocates of reproductive choice instead claim that, to minimize abortion, we should favor policies that enable things like easy access to contraception and comprehensive sex education.

In other words, we reduce the number of abortions by reducing the number of unwanted pregnancies.

What’s so odd about this argument is that it should be effective. If one’s goal is to eliminate as many abortions as possible, then surely one should implement the policies that reduce it and minimize the harm they produce when one inevitably occurs. Yet this argument seems to have little, if any, purchase with anti-abortion advocates. Why might this be?

To demonstrate what’s going on here, consider a thought experiment. Imagine that we lived in a society where murder was never formally outlawed. Despite this, the murder rate has never been higher than that found in other nations – the fear of social sanction and our general apprehension towards harming others have kept most people in check. Yet our lack of anti-murder statutes has been something of a national embarrassment. You decide to join a campaign to make murder illegal.

Suppose you’re canvassing as part of the campaign. You knock on my door. I open it and listen to your spiel. However, part way through I begin to shake my head and say the following:

“No, no, no. You’ve got it all wrong. We should simply invest in conflict mediation, anger management, and self-defense courses. This is how we prevent murder.”

There’s something head-scratching about my response. You do not want murder to be illegal merely to reduce its occurrence. Rather, you seem to be motivated by a concern for what murder being legal says about our society.

How can we explain this discrepancy? Declaring something as illegal accomplishes (at least) two things. First, it coerces people to avoid doing it. In this regard, the success of a law is determined by the law’s consequences. Prohibition of alcohol in the United States was a failure due to its consequences; it led to organized crime and did not prevent drinking.

Second, declaring something as illegal sends a message. Namely, it sends the message that some particular act is unacceptable. Call this the law’s expressivist content. For instance, in Texas v. Johnson, the Supreme Court considered the constitutionality of a law outlawing the burning of a U.S. flag. Surely, the reason for this law was not to curb the negative consequences of burning the flag. Rather, the law was created to send a message: “desecrating” objects like the flag is unacceptable.

Now we can see why arguments appealing the consequences of outlawing abortion ring hollow to anti-abortion advocates.

Their concern isn’t about the consequences of whether abortion is legal. Instead, their concern seems to be primarily about the expressivist content of allowing abortions.

They view abortion as a grave moral ill and, thus, object to the tacit endorsement of abortion as acceptable that is communicated by the procedure remaining legal.

This last point, however, may come too swiftly. Even here this argument may be collapsing a significant difference together. The argument uses a moral claim and infers a legal claim from it. But this does not necessarily follow.

Morality & Legality

Even though we often justify our laws on the basis of morality, morality and legality often come apart. For instance, few would think you did something seriously wrong if you, after checking carefully, ran through a red-light at 2 AM with no other drivers on the road. However, you would be doing something illegal. One might argue that tobacco companies engage in an immoral practice by selling their products – they knowingly sell goods that are physically addictive and cause serious harm to the customers. Yet, unless a tobacco company is violating regulations, they are not acting illegally.

But why allow for this difference? Why shouldn’t our laws wholly overlap with our morality? First, the law may appeal to factors that morality does not consider. For instance, laws often consider the costs and effects of enforcement. Most think that lying for selfish purposes is immoral. But enforcing a law against this would be disastrous – it would require huge disruptions of our personal lives, it would result in citizens having to report suspected liars to the police, and a very large amount of money spent on investigating these allegations.

Further, the law is (or ought to be) concerned about citizens’ ability to endorse it and justify it to others. The philosopher John Rawls introduces two concepts which are helpful to consider here: what he calls overlapping consensus and public reason.

Overlapping consensus is reached when citizens in a country are able to endorse the same laws for their own personal reasons, even if those personal reasons differ.

Consider again murder being illegal. This is a law that anyone can endorse – Abrahamic religions have commandments against killing, Buddhists think there is a general prohibition on violence, Atheists may think that murder is bad because of the suffering it causes, etc. Despite having different reasons for accepting the law, each endorses it as legitimate. Thus, overlapping consensus has been reached.

While overlapping consensus deals with our private reasons for endorsing the law, the concept of public reason deals with how we persuade others in political debates. According to Rawls, public reason requires, in part, presenting justification for laws and policies using claims that anyone can accept as true. This does not forbid anyone from, say, having a religious reason for wanting a particular law. But rather, the idea is that public discourse should rely on values and reasoning that others view as legitimate values and acceptable ways of reaching conclusions.

This demonstrates two significant problems. First, as my previous column suggested, our views on abortion depend on our views regarding numerous philosophically complicated questions. This is a problem for public discourse itself. Second, even we have worked out our own, individual views on these matters, this does not necessarily imply that we ought to outlaw abortion.

When determining what should and should not be illegal, we need to consider far more than what is moral. We need to consider what the purpose of a particular law actually is, the costs of enforcing it, or what happens if we do not allow the state to intervene.

Further, we must ask ourselves whether the reasons that we publicly present to defend our views are reasons that anyone could accept, or if they rely on some framework that other citizens do not endorse.

In closing, I want to note an under-appreciated line of thought. Judith Jarvis Thomson in “A Defense of Abortion” presents what are perhaps the most influential philosophical arguments about the morality of abortion (helpfully summarized here by Giles Howdle). Near the end of this article, Thomson distinguishes between what she calls Good Samaritans and Minimally Decent Samaritans. Good Samaritans are those who will go out of their way, perhaps at significant cost, to aid others. Minimally Decent Samaritans are those who do something to help others, even if it is not much.

Morality often requires us to be Minimally Decent Samaritans. Morality may sometimes call for us to be Good Samaritans. The law, on the other hand, does not even require us to be Minimally Decent. Indeed, unless we’re characters in the finale of Seinfeld, the law does not compel us to aid others in need even if it would be monstrous for us to remain bystanders. Making abortion illegal would be an extreme exception – it would require the pregnant person to make many significant sacrifices for the sake of saving another’s life.

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Underdefined Terms in the Abortion Debate

photograph of pro-life protest signs in front of Supreme Court

With the Supreme Court’s ruling in Dobbs v. Women’s Health, debates about the regulation of abortion will likely become an even more contentious issue in the coming days – a sentence which would have seemed absurd even just a few years ago. State legislatures may now attempt to outright ban abortion, which would likely lead to highly publicized, intense debate on the issue.

My purpose in this and the subsequent article is not to advance a view on abortion or the regulatory limits the state ought to place on it. Instead, my goal is to consider some concepts central to the abortion debate and demonstrate that they are used sloppily in public debates about abortion.

The hope is that, by illuminating these concepts, we may perhaps gain some clarity into why it feels like this debate has made little to no progress in the nearly 50 years since Roe v. Wade.

Indeed, polling suggests that for nearly thirty years a slight majority of Americans have consistently felt abortion ought to be legal in most cases, while those who think abortion ought to usually be illegal make up somewhere in the high thirties to low forties of participants polled.

Before beginning, it may be worthwhile to put my biases on the table. I think that a right to access abortion is implied by a general right to bodily autonomy. However, I am not a legal scholar and cannot discuss in depth what legal rights substantive due process guarantees, or whether we even ought to adopt that standard.

Nonetheless, I find the reasoning in the majority’s opinion deeply troubling. The opinion, authored by Justice Samuel Alito, argues that abortion rights are not explicitly guaranteed by the Constitution. Further, the majority state that a right to abortion it is not “deeply rooted in this Nation’s history and tradition” as the procedure was illegal in most states until the “late 20th century.” However, plenty of other things seem obviously inappropriate for the state to regulate yet fail to pass these criteria; a right to marriage is not named in the Constitution, and interracial marriage was illegal in most states until the mid-20th century, with 16 hold-out states until Loving v. Virginia, a case decided just six years before Roe. Although it is worth noting that the majority opinion attempts to differentiate abortion from other purported rights grounded in the right to privacy, like interracial marriage, same-sex marriage, and access to contraception. (I will discuss more on this point later.)

Through my discussion, I will refer to those who are against the legalization of abortion as “anti-abortion” advocates, while calling those who support the legalization of abortion as arguing for “reproductive choice.” This is to avoid the way in which identifiers like “pro-life” may be normatively loaded.

I begin by focusing directly on some concepts which are the heart of debates about the morality of abortion. My next column focuses more directly on overlooked concepts involved with debates about its legality.

Humans & Persons

Generally speaking, the position of anti-abortion advocates gets its support from a very simple argument:

1. Killing is wrong.
2. Abortion kills a zygote, embryo, or fetus.
Therefore, abortion is wrong.

Line 1, while very intuitive, quickly runs into issues. Namely, not all killings are obviously wrong. For instance, most people see no moral problem with killing an animal to eat it, or exterminating unwanted pests in the home.

So, one might specify line 1 by changing it to 1’) Killing a human is wrong. However, even this may still be questioned. 1’ puts significant pressure on the second premise. A zygote is human in the sense that it has human DNA. But as a bundle of cells, it is no more human than, say, a tumor. Embryos and fetuses begin to resemble humans in their physical shape. So perhaps they might meet the criteria for being human, while a zygote does not.

But being a living being that looks human or has human DNA does not seem to grant “moral status” – having standing such that your interests are given equal moral importance to the interests of others.

Being human seems neither necessary, nor sufficient. Science fiction and fantasy are littered with non-humans who seem to deserve the same moral status as humans; some fans felt aggrieved that Chewbacca did not get a medal at the end of the first Star Wars film.

Further, imagine a hospital in a triage situation. Suppose that a new patient arrives who needs immediate care. Call her patient K. If patient K receives the care she needs, she will make a complete recovery. If not, she will quickly die. However, the only way to free up the resources necessary to treat patient K is to cease treating a different patient. Call her patient M. Patient M has suffered total frontal brain death. Although patient M’s body still performs vital functions like maintaining breath and heartbeat, there is no chance that she will ever regain consciousness or perform higher cognitive functions again.

Should the doctors halt patient M’s treatment to save patient K’s life? Most would think yes.

This is not to say that patient M deserves no consideration. But rather, when patient M’s interests conflict with patient K’s interest, it seems like patient K’s ought to win out. This means that patient K has a higher moral status than patient M.

This example in particular suggests that having full moral status requires more than being a living human being. Namely, it requires having certain psychological capacities – things like the ability to form a self-concept, to think rationally and to develop a plan for your life. This is why beings like Chewbacca deserve the same consideration that we do, despite the fact that they lack human DNA.

While zygotes, embryos, and fetuses are human in the sense that they are members of the human species, they seem to lack these psychological capacities. Thus, they lack what is required for what some call personhood in the moral sense, or moral personhood. Thus, even if their interests deserve some moral consideration, they may not deserve as much consideration as those of a clear moral person – in particular, a pregnant person.

However, it should be noted that some may ground full moral status in things other than possession of certain psychological capacities. For instance, some religiously motivated anti-abortion advocates may claim that a human has full moral status from the moment of conception onward due to the possession of something like a soul. Of course, unless their interlocutors share the belief in a soul, this move may simply bring the discussion to a halt.

“Potential Lives”

So, some anti-abortion advocates might change their rhetoric. They could instead claim that zygotes, embryos, and fetuses have elevated status because of their potential, rather than their current capacities. In criticizing the dissenting opinion, Justice Alito notes that the dissenters do not acknowledge “the States’ interests in protecting fetal life.” Elaborating further on this, he briefly states that comparing the decision in Dobbs to decisions in Griswold, Eisenstadt, Lawrence, and Obergefell relies on a false analogy – abortion “destroys a potential life” but contraception, sodomy, and same-sex marriage do not, claim the majority. (Although it is worth noting that Justice Clarence Thomas, in his concurrence, writes that the court should reconsider its due process precedents, specifically naming Griswold, Lawrence, and Obergefell.)

But this idea of a potential life is quite vague. Eggs in a bird’s nest are potential lives. Unless these are eggs of an endangered species, the state does not seem to have an interest in regulating our conduct towards them. So surely the majority means potential persons – the idea here being that because personhood is of moral significance, then having the potential to be a person must also be morally significant.

However, “potential person” is still too vague. Taken on its face, everything from a fertilized egg onward is a potential person. But it need not stop here. All it takes to begin a process that will eventually result in a person is to have a single sperm cell and a single egg cell. So, these two cells may be potential persons. This would lead to some absurd consequences – if the state has an interest in protecting potential persons, then they would have an interest in banning products like contraceptives or procedures like vasectomies. But surely, at least for now, this is not what the Court suggests.

As a result, we may wish to introduce a more fine-grained distinction about potentiality. Stephen Buckle distinguishes between potentiality in two senses – the potential to produce and the potential to become.

A single sperm and egg cell are potential persons in the sense that they may produce a person; they’re the necessary “raw ingredients” to start a process that eventually can result in a person. However, they themselves do not become a person. Instead, they produce other entities that become a person.

The power to become instead deals with what Buckle calls “distinct individuals which preserve their identity over time.” Thus, even a fertilized egg would not have the power to become a person. According to Buckle, preserving identity over time requires having some kind of unifying structure which makes one a distinct individual.

But the exact nature of this identity preserving unifying structure is an open question. Some might argue that identity is a matter of being the same living organism. Others claim that it is a matter of spatio-temporal continuity; that if we could plot your location over the course of time, the result would be an unbroken 4th dimensional “space-time-worm” where each “slice” is your location at a moment in time. I’ve noted elsewhere that psychological factors play a role in our identity.

Thus, there are multiple candidate answers to the question of what has the power to become a person. If our identity consists in being a human organism, then the power to become a person emerges at the point when the embryo becomes a fetus – after the cells have differentiated, taken on functions, and the overall structure of the organism is set into place. If we are instead space-time-worms, then our identity stabilizes as early as fertilization. But if our identity is a matter of psychology, then we may not develop the power to become persons until much later, perhaps not even until after birth when our experiences start shaping our future attitudes and behaviors.

As a result, the sense in which we call something a “potential life” has great bearing on what policies we should favor. If we mean those things which have the power to produce a person, then what behaviors the state has an interest in regulating would be very far reaching – any time that we are not reproducing as much as possible, we are destroying or at least preventing a potential life. But if we instead mean that a potential life exists only when something has the power to become a person, then we are stuck having to answer the question of what preserves our identity over time before we can answer any questions about whether a fetus has the potential to become a person.

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Constitutional Deadlock Over Privacy: A Third Way?

photograph of protest sign in fron of Supreme Court

Following the overturning of Roe v. Wade, a great deal of media attention has been focused on what comes next. The right to an abortion, granted by the original landmark case, was founded on the basis of a constitutional right to privacy. But it has already been made clear that similar rulings regarding a constitutional right to privacy, such as Griswold v. Connecticut could be at risk of being overturned as well. In addition, the Supreme Court has attracted controversy for several other controversial decisions as well, prompting proposals for how to reform the Court or how to reverse these decisions. But with confidence in the courts falling to historic lows, many such proposals would likely only make the situation worse and undermine confidence in the courts even more.

Perhaps it is time to stop worrying about what policies we want courts to protect and to start thinking about finding broad support for changes in process in the form of constitutional amendments.

The recent decision from the Supreme Court regarding abortion combined with rulings on school prayer, concealed guns, voting rights, and worries about future rulings once again reignite debates about whether and how the Supreme Court should be reformed. The impeachment of justices who some feel misled Congress has been floated, and the topic of court-packing has resurfaced again. The constitution does not specify the number of judges on the Court, so Congress could simply pass legislation creating more positions and then have those positions be filled by left-leaning justices to re-balance the Court. Term limits for Supreme Court justices would mean that there would be more turn over, preventing the Court from becoming too ideologically lopsided.

In addition to proposing reforms to the Courts’ makeup, some have proposed reforms to the powers of the Court. Some now propose that Congress strip the Supreme Court of its jurisdiction for hearing certain kinds of cases, or that legislation could be passed requiring a supermajority of justices to strike down federal laws. It has even been suggested that if a particularly controversial ruling comes from the Court that Congress or the President simply ignore it, under the constitutional theory known as departmentalism which holds that each branch of government may decide on its own how to interpret the Constitution. In addition, there are several proposals to create mechanisms for Congress to override the Court if it wanted to, not unlike Canada’s notwithstanding clause.

While many of these proposals might appease in some areas, they all have problems when it comes to putting them into practice.

After all, abortion rights proponents now find themselves in the same position as anti-abortion advocates did in the 1970s, and it took almost 50 years for them to get what they wanted. Proposals like court-packing simply do not have enough support.

It is important to note that much of the Supreme Court’s power is based on the confidence the public has in it. The Constitution does not prescribe many powers to the Supreme Court, and even its power of judicial review is based on the precedent Marbury v. Madison, and as it has become all too clear that precedents are not set in legal stone. If people do not feel like the Court is impartial, they will be less inclined to heed its pronouncements. While some would like to see justices impeached or the court packed, this would only serve to undermine the confidence in the Court from those on the right, likely prompting retaliatory measures. This would weaken perceptions of impartiality of the Court even more, effectively transforming the Supreme Court into a very exclusive legislature.

Meanwhile, having Congress override the Courts’ decisions risks undermining the commitment to minority rights.

Fundamental protections would become a flimsy thing, being reversed whenever the opposing party comes to power. Limiting the High Court’s jurisdiction risks similar problems, simply offloading the same basic problem to an alternative body that the parties will shape so as to achieve their preferred policy objectives. All these efforts to manipulate the judicial system in order to secure specific political outcomes will only undermine overall public confidence in the Court.

Perhaps an alternative to such a standoff is to stop thinking about desired result we wish courts to deliver and start thinking about broader legal principles to embed in the constitution that could appeal to people on all sides of the spectrum. The legal issue underlying so many contentious issues like Roe v. Wade is the issue of privacy. Abortion opponents charge that because privacy isn’t explicitly established in the Constitution, it isn’t protected. Rather than dealing with legal debates about implied rights, why not amend the Constitution to explicitly include privacy rights? Polls show that a vast majority of Americans are concerned about privacy issues. And with the rise of surveillance capitalism, and of AI accessing vast datasets, there may be room for broad support for proposals to embed some kind of privacy protections in the constitution.

While getting the support needed for constitutional amendments is difficult (the last amendment was ratified in 1992), the increasing importance of privacy to broad segments of American society may create room for bargaining and compromise on these issues by both the left and the right. Recently, constitutional-law David French opined that the Court’s overturning of Roe v. Wade may actually help de-polarize America. Because the pro-life vs. pro-choice debate largely centered around Roe v. Wade, sides had to defend a precedent, not a specific policy. But as French observes,

Is there a hope that you would have something along the lines of a democratic settlement to the issue that makes abortion so much less polarizing in other countries around the world? Europe, for example has long had more restrictive abortion laws than the United States, but the United States couldn’t move to a European settlement because Roe and Casey prohibited that.

Indeed, polls show that Americans have fairly nuanced views when it comes to abortion. Few people would favor an outright ban on the procedure, so it may not be so difficult to imagine a compromise proposal for adding privacy to the Constitution that would not only protect abortion rights, but other rights like access to contraception, gay marriage, and protections from online surveillance. Such a move would not only allow Americans to address newly emerging privacy issues but also settle old disputes. Abortion rights passed through constitutional amendment would also have a legitimacy that Roe never did amongst abortion opponents, preventing back-and-forth sniping at the Court for not upholding preferred policies.

While a constitutional amendment would take time and a lot of negotiation, it may yield a far more stable and broadly satisfying solution to the abortion debate compared to the previous alternatives while not undermining confidence in the Court system itself. So instead of looking to courts to reach specific policy outcomes, perhaps the attention should be focused on building coalitions of support for broad legal principles that people can agree on.

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Corporate Responsibilities after Roe v. Wade

photograph of "Abortion Is Healthcare" protest sign

The Supreme Court’s decision to overturn Roe v. Wade has raised numerous legal and moral questions. Making access to abortion an issue to be decided by individual states has already become a complicated legal matter, as some state courts have challenged so-called “trigger laws” – laws meant to make abortion illegal the second the Supreme Court decision came into effect. Many states had already made their intentions clear with regard to access to abortions when the draft Supreme Court memo was initially leaked back in May, and many other groups and corporations have weighed in on where they stand on the issue.

There is ample evidence that the Supreme Court’s decision harms American women (e.g., see from this thread alone: [1], [2], [3], [4], [5], [6], [7], [8]). Overturning Roe has been derided as massively regressive by many, and is opposed by a significant majority of the American people.

In light of all the immensely important issues at play, the question, “what is the role of corporations in all this?” might seem trivial. Perhaps somewhat surprisingly, however, numerous companies have announced recently that they would fully or partially reimburse the expenses of their employees should they require out-of-state travel in order to undergo an abortion. These decisions raise a lot of interesting questions, but I’ll pose just two here.

First, we can ask whether corporations have any moral obligation to provide so-called “abortion travel coverage” for their employees. Second, we can ask what it says about the functioning of a democracy when corporations step-in to help rectify a harmful and unpopular mistake made by the Supreme Court.

Let’s start with the first question first. There are, of course, evergreen questions about whether corporations have moral obligations at all, and if so, to whom and to what extent. Even assuming that they do, one might still think that corporations don’t have any specific obligation to help their employees avoid what they perceive to be unjust state laws, while also recognizing how such actions could result in the prevention of significant harm. In this way, providing abortion travel coverage may be seen as supererogatory – actions that are good but not strictly-speaking required, in that they go above and beyond the call of duty.

Some companies, however, see the provision of abortion travel coverage as being part of their agreement to provide access to health care to their employees. For example, a statement from Gap Inc. notes that part of their “mental health and family planning benefits…include coverage of adoptions, surrogacy, fertility treatments, paid parental leave, contraception, and abortion.” Similarly, a statement from Disney notes that abortion travel coverage is part of coverage that the company provides for other types of medical procedure:

In fact, we have processes in place so that an employee who may be unable to access care in one location has affordable coverage for receiving similar levels of care in another location. This travel benefit covers medical situations related to cancer treatments, transplants, rare disease treatment and family planning (including pregnancy-related decisions).

In these cases, companies may see the obligation to provide abortion travel coverage as nothing beyond the fulfilling of a contract to provide medical coverage that it has made to its employees.

Other companies have taken a different stance. For instance, Yelp CEO Jeremy Stoppelman wrote in a recent statement that “[r]emaining silent on the issue of reproductive rights flies in the face of any public pledges professing a desire to create more diverse and inclusive companies” and that what is needed are “more business leaders to use their platform and influence to help ensure that reproductive rights are codified into law, and that the wave of abortion bans and restrictive policies across the country are not allowed to stand.” Stoppelman’s argument thus points toward a moral obligation on the part of companies: as major corporations have power, influence, and the potential to impact policy, they have a responsibility to act in the face of unjust decisions.

We are then led to the second question: what does it mean for the state of a democracy that corporations can (and potentially ought) to take actions that can help citizens side-step unjust laws?

Of course, it is not as if corporations haven’t influenced laws and policy decisions in the past. But this influence is typically lamented as being bad for a well-functioning democracy – i.e., corporate money financing and influencing political policies in ways that are beneficial to shareholders and detrimental to everyone else – not as a potential force for good.

We’ve seen already that the Supreme Court’s decision is not reflective of the view of the majority of Americans, by a large margin. Providing employees with the ability to travel out of state for an abortion can thus help restore a right that has unjustly been taken away, even if such a right is only restored in a practical sense. If the Supreme Court decision represents a failure of democracy, as some critics have argued, perhaps the actions of corporations can help counteract it.

I put forth that consideration while fully admitting that I don’t know what to do with it. It represents an oddly-shaped band-aid to a structural problem of U.S. democracy. But it’s one that might have to do for now, until real change can occur.

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When Courts Change Their Minds

photograph of law books in a library

In late June the Supreme Court of the United States released a bevy of opinions. Most prominent perhaps is the 5-4 decision in Dobbs v. Jackson Women’s Health in which the court overturned the famous 1973 Roe v. Wade decision. The court also, in Kennedy v. Bremerton, has done away with the long used “Lemon test” concerning the separation of church and state.

Beyond questions of whether the decisions are ethically correct, these rulings are notable because they go against established precedent. In legal systems like the United States, courts generally adhere to the doctrine of stare decisis or “to stand by things decided.” The Supreme Court has previously ruled – in both Roe v. Wade and Planned Parenthood v. Casey – that there exists an implicit constitutional right to abortion. Changing its mind is then unusual, although hardly unique to the current court. The 1954 Brown v. Board of Education is famously seen to have overturned the “separate but equal” doctrine the court had previously held in Plessy v. Ferguson. (Although, technically, the Brown ruling is more narrow, only contending that separate but equal does not apply in public schools.) Evan Butts has previously discussed some of the practicalities of overturning precedent for The Prindle Post.

Recent additions to the Supreme Court, such as Justices Brett Kavanaugh and Neil Gorsuch, are being criticized for implying (misleadingly) they would stick with precedent on rulings like Roe v. Wade.

But why should the Court be bound by past opinion at all? Imagine a scientist claiming that we should stick with Newtonian physics and not jump ship to general relativity because Newtonian physics is an established precedent – even though they agree Newtonianism is incorrect.

This would be preposterous. And yet stare decisis is often understood to imply such a burden, that, as Justice Brandeis wrote in 1932 “in most matters it is more important that the applicable rule of law be settled than it be settled right.”

Following precedent in cases where the rightness of the initial ruling is not in question is straightforward – this is nothing more than a demand for courts to interpret the law correctly. Precedent as such is superfluous here, as consistency is being ensured purely by the court deciding correctly in each case. The doctrine of stare decisis only achieves importance when it comes to ambiguous or even wrongly decided cases, and whether they should nonetheless maintain some hold over future judicial decisions.

As Justice Brandeis suggested, defenders of stare decisis justify it by pointing to its role in settling matters of law – that is, making law fair, consistent, and predictable, as opposed to mercurial.

The claim is that absent this general principle of stability, the law could change drastically with the simple turnover of judges. More practically, precedent also provides courts the legal tools to decide cases efficiently.

The value of having settled law is especially clear in cases like Obergefell v. Hodges (2015) which enshrined a constitutional right to the recognition of same-sex marriages. Agree or disagree ethically, it is clear same-sex couples can and have built their lives differently knowing that they have a right to marriage recognition. Likewise, agree or disagree ethically with abortion, confidence they have control of whether to go through with a pregnancy affects how women live their lives. These are referred to as reliance interests.

Notably, these defenses of precedent contain the seeds of their own limitation as ultimately the doctrine of stare decisis is justified on the basis of being a social good. Cases of pernicious and dubiously-decided law are weighed against the value of the law being settled. Justice Brandeis made a further point, distinguishing the weight of precedent in statutory law (made by the legislature) which can easily be overturned by later legislation, from precedent in matters of constitutional interpretation. According to Brandeis, precedent matters less when there are fewer forms of redress.

Overall, few if any defend an imperative to follow precedent for all cases – at least when it comes to rulings being made by a court of equal or lesser authority. Precedents can and do get overturned. That lower courts should follow upper courts can provide an alternative defense of following precedent even in wrongly decided cases (sometimes called vertical as opposed to horizontal precedent).

In the 2018 5-4 decision Janus v. AFSCME, the majority opinion authored by Justice Samuel Alito indicated that the current Supreme Court is especially open to revisiting previously decided matters when it believes they were wrongly decided. Justice Clarence Thomas has claimed, most recently in his concurring opinion in Dobbs v. Jackson Women’s Health Organization, that the Court should correct “demonstrably erroneous” rulings.

Expanding Thomas’s point, one could argue that the Supreme Court should have no special obligation to consider the social value of precedent and settled law at all, and simply always make the legally correct decision.

The chief challenge with this line of argument is on what basis should a case be considered “demonstrably erroneous”? Certainly, the current Supreme Court does not have consensus that the legal reasoning of Roe v. Wade and Planned Parenthood v. Casey was wrong. (Brown v. Board of Education incidentally was a unanimous decision.) Absent strong evidence, e.g., a unified court, that a decision was made wrongly on legal grounds, the “demonstrably erroneous” standard of overturning precedent can collapse into “I think this decision was decided wrongly, and therefore I am justified in overruling it.” This reintroduces the dependence on the idiosyncrasies of specific justices that a principle like stare decisis is supposed to help limit.

Law is complex and so is legal interpretation – we should expect obviously incorrect decisions to be the exception rather than the rule. In light of this, one approach to stare decisis would be to acknowledge precedent should not be binding, but that the force of its motivating reasons such as consistency and stability of law apply especially strongly in cases where legal correctness or the proper interpretive framework is under dispute. Nonetheless, the current Supreme Court has indicated a more revisionary stance. It will become clear over the next few years how this plays out with the broader legal understanding of stare decisis in the United States.

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Why Misleading Is Wrong (but Isn’t Perjury)

photograph of Kavanaugh being sworn in with hand on Bible

In the wake of the Supreme Court’s recent ruling in Dobbs v. Jackson (where the Court overturned national legal protections to abortion rights codified by 1973’s Roe v. Wade), several justices have faced heavy criticism for comments they made during their confirmation hearings about Roe and stare decisis (the legal practice of ruling on cases according to established precedent).

According to critics, multiple justices lied during their job interviews about their commitments and principles, not only misleading the politicians who supported them, but theoretically making them liable to impeachment.

As talk show host Stephen Colbert put it, “if these folks believe that Roe v. Wade was so egregiously decided, why didn’t they tell the senators that during their confirmation hearings?”

There are at least two ways to answer Colbert’s question and, importantly, neither of them entail that any of the justices lied under oath — but that’s not to say that Gorsuch, Kavanaugh, or others didn’t speak immorally nevertheless. Consider how someone can manipulate or mislead another by carefully speaking in a way that is not technically untruthful, using insinuations, suggestions, and even silence to push their audience into believing something: in so doing, the speaker is unethically violating conventional expectations about trust and good-faith communication, even if they never speak a falsehood.

Indeed, “telling a lie” and “misleading an audience” are substantively different and although both speech-acts are unethical, only the former is clearly illegal while giving sworn testimony. But whether justices were carefully following the “Ginsburg rule” during their hearings (that requires a judicial candidate to give “no hints, no previews, no forecasts” of their potential rulings) or whether they were shrewdly avoiding a clear answer that might sour their chances of confirmation, it’s not clear that any of them lied to Congress.

In order to actually tell a lie, someone must:

1. Know the truth,
2. Assert the opposite of the truth,
3. Act with the intention of getting their audience to believe the opposite of the truth.

Suppose that Bill tells Calvin that their automatic garage door opens because a guy lives in the attic to operate its movement. This claim is not true, but if Bill genuinely believes it (violating Condition #1), then he hasn’t lied — he’s simply incorrect. Similarly, if Bill violates Condition #2 and phrases the speech act as a genuine question (“Do you think that someone lives in the attic?”), then he hasn’t lied either. And, crucially, if Bill is just making a joke or is otherwise speaking ironically (and doesn’t actually mean for Calvin to form a belief in an attic-dwelling door-opener), then he is violating Condition #3 and has also not explicitly told a lie.

But suppose that Bill simply implies that someone lives in the attic and misleads Calvin to form such a false belief — maybe Calvin asks Bill if such a person exists and Bill responds with “It is metaphysically possible for such a person to live in our attic.” This response isn’t technically false (because, although it is wildly unlikely, it is possible), so Bill hasn’t technically lied. Granted, Calvin would have to be exceedingly gullible to be misled by Bill in this way, but Bill could be guilty of trying to mislead Calvin nonetheless.

As MIT philosophy professor Sam Berstler explains in a recent paper, both liars and misleaders violate social conventions about the trustworthiness of speakers in conversations (where we typically assume that our interlocutor is acting in good faith), but only the former also violates expectations about truthfulness.

Put differently, liars fulfill conditions (1), (2), and (3); misleaders fulfill only conditions (1) and (3).

And, crucially for the present conversation, the legal definition of perjury requires that someone fulfill (2).

So, what did the SCOTUS justices actually say about Roe before being confirmed to the bench? Speaking in 2017, Neil Gorsuch repeatedly referred to the precedent set by Roe, calling precedent the “anchor of law” that functions as “the starting place for a judge”; when pressed about whether or not he accepted that a fetus is not protected by the 14th Amendment, Gorsuch replied “that is the law of the land. I accept the law of the land.” The following year, Brett Kavanaugh infamously told Senator Susan Collins in a private conversation that he considered Roe “settled law,” but in his sworn testimony he again referred to it as “a precedent of the Supreme Court, entitled the respect under principles of stare decisis” and, like Gorsuch, repeated that “the Supreme Court has recognized the right to abortion since the 1973 Roe v. Wade case. It has reaffirmed it many times.”

This is clearly true: prior to June 2022, SCOTUS had indeed repeatedly looked to Roe’s precedent as the law of the land — but SCOTUS is also empowered to overrule precedent: as Gorsuch said, it is only the starting place for a judge.

Which means that Gorsuch and Kavanaugh’s sworn testimony (as well as that of the other four justices who overturned Roe) is fully compatible with the present Court overturning that precedent: it was the law of the land during their confirmation hearings, but now it is not.

Put differently: because no Supreme Court justice explicitly asserted that “I will not ever vote to overturn Roe,” none of their speech acts fulfill Condition #2 and so qualify as neither lies nor perjury.

However, to reiterate, this does not mean that the justices are above reproach here (despite what some pundits have suggested): misleading your audience — as Gorsuch and Kavanaugh (and others) apparently did by giving well-crafted, technically-not-perjuring responses that still prompted senators to form false beliefs about their later intentions — is unethical in a host of ways. In particular, being misleading violates expectations about your trustworthiness and integrity: this is something close to lying, even though it is not illegal. A key difference, however, is that your audience also bears some responsibility for their naivety, ignorance, or lack of epistemic diligence that allowed them to be duped (something particularly damaging to the credibility of the justices’ audiences, given that U.S. senators should be familiar with the stereotypical double-speak of lawyers and politicians — to say nothing of the other evidence available prior to the confirmation votes).

But there’s little formal recourse for shamefulness.

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Roe v. Wade and the Meaning of a Right

image of United States map divided into blue and red polygonal shapes

On May 2nd a draft of a Supreme Court decision written by Samuel Alito was leaked. It challenges the core holding of Roe v. Wade – that there exists, unenumerated but implicit, a constitutional right to an abortion.

If something like the draft became law, it would represent a drastic overhaul of the legal landscape for abortion in the United States.

Thirteen states are waiting with currently unenforced “trigger” laws on the books, that will go off and ban abortion even during the first trimester. And yet, in other ways, even the elimination of a constitutional right to abortion is not a cataclysmic shift, but instead a continuation of the slow erosion of access to abortion that has characterized the past several decades.

The case currently under review at the Supreme Court is Dobbs v. Jackson Women’s Health Organization. Notably, Jackson Women’s Health Organization is the only licensed abortion clinic in Mississippi; they only provide abortion up to 16 weeks, patients are required by state law to have an ultrasound and make two separate trips at least 24 hours apart, and underage patients require parental consent. Moreover, Mississippi provides public funding only in cases of life endangerment, rape, or incest, and health insurance sold on state exchanges does not cover most abortions. Such a highly restrictive environment for abortion access is not unique to Mississippi, but characterizes many states. This is with Roe v. Wade intact.

In the initial 1973 decision, the now famous “trimester” framework of Roe v. Wade was set out based largely on balancing an unenumerated constitutional right to privacy, various health and safety considerations, and a state interest in protecting potential life. It specified a federal level framework under which state laws could be implemented. During the first trimester (around 3 months) of pregnancy, abortion must be legal everywhere and would only be subject to basic medical safety regulation. During the second trimester, abortion could not be banned but it could be subject to reasonable regulation that promoted the health and safety of the parent. During the third trimester, abortion could be banned by state law.

Under Roe v. Wade, proposed regulations on abortion would be subject to the highest standard of judicial review – the strict scrutiny standard.

To evaluate constitutionality of a proposed regulation under this standard, a court first checks to see whether a regulation pushes a compelling state interest and then whether that regulation is appropriately precise or if the state interest could be advanced in a less restrictive way.

Regulations like the current Mississippi requirement for a clinically unnecessary ultrasound prior to abortion would almost certainly fail this standard. However, this is no longer the standard of judicial review that is in use.

While Roe v. Wade is the most famous case concerning abortion, and clarified that it is a constitutional right, the details of abortion law in the United States have been superseded by a later Supreme Court case, the 1992 Planned Parenthood v. Casey. This decision changed the legal landscape in two fundamental ways. First, it ended the trimester framework replacing it with a pre-viability, post-viability of analysis. (Viability is when the fetus can live outside of the womb albeit with medical support and generally occurs around the 24-weeks mark.) Second, it changed the standard of judicial review from strict scrutiny to the weaker and less common “undue burden” standard. Under this approach, regulations of abortion could be implemented even pre-viability as long as they did not provide an undue burden to those seeking access to abortion.

However, what constitutes an undue burden is contentious and highly dependent upon parental resources. Intentionally or otherwise, this new standard opened the legal floodgates to state level regulations that often had an explicitly anti-abortion intent, e.g., that abortion clinics must be subject to the same architectural guidelines as full surgical centers at hospitals despite no clinical need for this policy. Some of the most onerous regulations were deemed to in fact be undue burdens in the 2016 Supreme Court decision Whole Woman’s Health v. Hellerstedt, but many remain.

But beneath this legal dispute is a larger question of what it means to have a right at all.

Is a right to an abortion constituted simply by a prohibition on explicitly banning abortion, or does it require that people regardless of income actually be able to travel a reasonable difference, enter a safe and clean facility, and get an abortion? Does someone in Texas still have a federally protected right to an abortion if they have to travel to New Mexico to get one? Similar considerations are at play with other rights. Is a right to free speech secure if people must get free speech permits and can only protest in designated free speech zones? More generally, what legal, political, and social setup is required such that rights exist not merely as abstract metaphysical entitlements or legal stipulations but as meaningful parts of our lives? For many women, substantive access to abortion does not hinge on a looming Supreme Court decision but was lost decades ago.

Some reproductive rights advocates, like the SisterSong Collective, have criticized the mainstream pro-choice movement for being too narrowly focused on abortion as opposed to reproductive rights more generally, and abortion law as opposed to abortion access. They seek a broader movement around reproductive justice which they define as “the human right to maintain personal bodily autonomy, have children, not have children, and parent the children we have in safe and sustainable communities.” The understanding of rights at play is not a narrow legal one, but rather demands the commitment of resources such that reproductive rights are socially and materially supported. A hospitable legal landscape for abortion is part of this, but only part.

The Alito draft overturns even a minimal understanding of the constitutional right to an abortion, and would permit individual states to ban abortion from conception onward. What this means is going to depend on where people live and their ability to travel. People in California need not worry about their state banning abortion; people who want access to safe abortion in Jackson, Mississippi should be more concerned. It could also start a national level legislative discussion about abortion – something a very risk-averse Congress has been loath to take on as long Roe v. Wade stood. (Although, of course, potential national legislation may not be in the interest of abortion rights.) More interestingly, a legislative conversation about abortion would not necessarily concerns rights at all, and could bring in aspects of the broader abortion debate such as public health and questions of fetal personhood that have been left out of often arcane judicial decisions concerning substantive due process, stare decisis (respect for precedent), and constitutional interpretation.

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Constitutional Interpretation in the Roe Reversal

photograph of Authority of Law statue facing out from Supreme Court building

On May 2, Politico published a leaked draft opinion of the Supreme Court of the United States in the case Dobbs v. Jackson Women’s Health Organization. The case concerns the constitutionality of Mississippi’s Gestational Age Act, which would prohibit abortions in the state after fifteen weeks. The appearance in the press of a leaked draft opinion of the Court is a highly unusual event unto itself, the exact circumstances of which are not yet known by the public but are currently the subject of investigation and speculation. The draft opinion, authored by Justice Samuel Alito, would not merely uphold Mississippi’s restrictive abortion law. It would overturn Roe v. Wade and Planned Parenthood v. Casey, and thereby rescind the constitutional protection for the right to privacy with respect to abortion that has been in place for nearly half a century.

Much of the public discussion about legal challenges to the right to privacy with respect to abortion in the press and in the confirmation hearings of Supreme Court nominees has, rightly or wrongly, focused on the doctrine of stare decisis. From this perspective, since the Court had already recognized and reaffirmed the right to privacy with respect to abortion, the key question was whether the Court would abandon that precedent and under what conditions the Court had a legitimate basis to do so. These issues also came up in oral argument in Dobbs. In electing to overturn precedent, the leaked draft opinion provides the following rationale: Roe and Casey were “egregiously wrong” decisions that “must be overruled” because the recognition of the constitutional protection of the right to privacy with respect to abortion was an “abuse of judicial authority” wherein “the Court usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people.”Alito concludes that “the authority to regulate abortion must be returned to the people and their elected representatives.”

It is first worth noting what the draft opinion does not say. It does not address the issue of whether, as a matter of basic justice or as a matter of political legitimacy, the right to privacy with respect to abortion requires constitutional protection.

This is because, notwithstanding the abstract moral provisions of the constitution, the theory of constitutional interpretation espoused in the draft opinion presupposes that these are mostly irrelevant considerations with respect to determining whether an unenumerated right is a candidate for constitutional protection. While it is presumably the case that Alito thinks abortion is some kind of grievous moral wrong, the draft opinion does nothing to support that conclusion other than to indicate that some people hold that opinion. Its primary aim is to demonstrate that the right to privacy with respect to abortion does not satisfy two key criteria it claims are necessary for an unenumerated right to require constitutional protection: that the right is “deeply rooted in [our] history and tradition” and compatible with a scheme of “ordered liberty.” According to Alito, the right to privacy with respect to abortion does not satisfy these criteria, and therefore the authority to regulate abortion must be left to the states.

It is worth contemplating just what the supposed restoration of the authority of the people to regulate abortion would constitute. This would grant states, in principle, broad police powers with respect to abortion. The people of the states could, of course, limit these powers by entrenching statutory or constitutional rights against their exercise, but they could also reserve such powers to the legislature. Some of these powers are the obvious ones that the opponents of safe and legal abortion desire: the authority to severely restrict or outright ban abortion within a state, including the authority to impose criminal penalties on women and their physicians if they are so inclined.

But it would also entail, as the late legal philosopher Ronald Dworkin pointed out, the authority to compel abortion so long as doing so promotes a legitimate state interest. This point was reiterated in Casey, which notes that but for the right protected by Roe, “the State might as readily restrict a woman’s right to choose to carry a pregnancy to term as to terminate it, to further asserted state interests in population control, or eugenics, for example.” A draft opinion which, if it does become the decision of the Court, would authorize state policy requiring compulsory abortion or would permit the institution of a scheme of licensure for the privilege of bearing children, including the imposition of fines or penalties for failure to make use of abortion services in the absence of such license is of great concern.

I mention this not because I think this is a likely prospect — I take no position on that question — but because it suggests that the draft opinion is prima facie defective.

And while jurists are generally less willing than philosophers to contemplate what they presume to be unlikely or fanciful consequences, or “hypotheticals,” it does not require any imagination to realize that such policies are not unheard of. These were effectively part of China’s One Child Policy, for instance. Once this dimension of the right to privacy with respect to abortion is acknowledged, it becomes clear that if the Court, in overturning Roe and Casey, primarily looks to a litany of 19th Century statutes restricting or prohibiting abortion as a basis for such a determination, it has not taken its analysis of “history and tradition” very seriously.

I have postulated that the same constitutional right to privacy that protects a woman’s right to choose whether to have an abortion also protects a woman’s right to not be compelled to have an abortion. It might be claimed that this point is irrelevant because it is possible to have one without the other: it is possible to jettison the right to choose and retain the right not to be compelled. It is certainly possible to conceive of a legal regime that is barred from compelling a woman to have an abortion without that woman having an individual right against such compulsion. For instance, if the state restricts itself from exercising that prerogative, or because it would violate the rights of someone else, e.g., if an embryo or fetus is considered to be a rights-bearing person, or if a woman’s body is considered the property of another person, and so on.

However, I would suggest that if a woman has an individual right not to be compelled to have an abortion, or, in other words, if such an invasion of her body by the state is an injury to her, as it plainly is, then, ex hypothesi, her right against such compulsion, whether described in terms of liberty, autonomy, privacy, or bodily integrity, also entails that she has the right to choose to have an abortion.

If this is the case, it follows that if the right to not be compelled to have an abortion meets the criteria for constitutional protection, then the Court is making a grave error in rescinding the right to privacy with respect to abortion.

The draft opinion is also concerning due to the precedent it sets for privacy rights in general. In a recent essay, the constitutional scholar Akhil Amar attempts to assuage these concerns. He aims to defend Alito’s claim that “[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” According to Amar, overturning Roe and Casey would not imperil other privacy rights because, first, the public statements of sitting Justices indicate that they are not inclined to rescind other privacy rights, (e.g., the right to privacy with respect to contraception and the right privacy with respect to interracial marriage), and, second, because the recent legislative agendas of the states suggests that there is little to no public support for doing so.

The basic idea is that, unlike other privacy rights, the right to privacy with respect to abortion remains controversial, as evidenced by the persistence of legal challenges by various states. Therefore, other rights are unlikely targets for rescindment.

But this point is cold comfort for those who take the right to privacy with respect to abortion to have the same foundation as the other privacy rights. Perhaps the current composition of the Court can make peace with the apparent interpretive inconsistency of recognizing some privacy rights and not others, of declaring some privacy rights fundamental rights and treating the recognition of others as tantamount to judicial usurpation. But that does not prevent a future Court from using the reasoning in this draft opinion, if it does become the decision of the Court, as precedent for such judicial misadventure. (Of course, no precedent can prevent a majority of the Court that is willing to dispense with precedent altogether from imposing its interpretation of the Constitution on the nation.)

Presumably the reason Amar does not find the draft opinion to be concerning is because he does not see any such inconsistency. He agrees with Alito’s assessment that “abortion is fundamentally different” from other privacy rights, a point on which he is cited as an authority in the draft opinion. One reason, put forth by Alito and Amar, for the supposed distinction between the right to privacy with respect to abortion and the other privacy rights is the presence of an interest in protecting “potential life.”

The implication is that the right to privacy with respect to abortion entails unique conflicts that other privacy rights do not. But this is not plausible.

First, it is necessary to be clear about what the nature of the conflict is. The legitimate state interest, acknowledged in Roe and Casey, of protecting potential life, presents a conflict between individual liberty and public policy. When this is recognized, there is plainly no relevant difference between the right to privacy with respect to abortion and other privacy rights. All of these may be in conflict with various kinds of social policy, for instance, in regulating the “morals” of a community, as anti-miscegenation laws certainly purported to do.

The other reason, adduced by Alito and mentioned by Amar, states that the right to abortion with respect to privacy is distinct because abortion “destroys an ‘unborn human being.’” But the Court has not dared to claim, even in this draft opinion, as it could not do without venturing into a constitutional quagmire, that an unborn human being is a constitutionally rights-bearing person. So it is not clear what the point of this claim is supposed to be or how it factors into constitutional interpretation.

It remains to be seen whether the official Dobbs decision will differ in any significant way from the draft opinion. What is clear is that the Court is on the verge of rescinding the right to privacy with respect to abortion.

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The Death of Roe v. Wade: What Lies Ahead?

image of US map with flag and constitution superimposed

The pro-life movement appears to be on the cusp of winning its crowning triumph — the overturning of the constitutional abortion regime established by two Supreme Court cases, Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey. In oral argument last December for the case of Dobbs v. Jackson Women’s Health Organization, involving a constitutional challenge against a Mississippi law banning abortion after fifteen weeks, all of the Court’s conservative wing — with the possible exception of Chief Justice Roberts — appeared ready and willing to abandon fifty years of precedent and declare, in Justice Kavanaugh’s words, that the “Constitution is silent and, therefore, neutral on the question of abortion.” Thus, it seems appropriate to consider now how the legal landscape might shift in response to this momentous development.

In what seemed like an attempt to mollify coastal liberals, during oral argument for Dobbs Justice Kavanaugh and Mississippi’s Solicitor General, Scott Stewart, speculated as to the relatively limited fallout we might expect. Seeking to paint a rosy picture of what the future might hold, Kavanaugh asked Stewart whether, if Mississippi prevailed, a “majority of states still could or… presumably would continue to freely allow abortion.” Stewart answered that this outcome was “consistent with our view.” Earlier in the argument, Stewart suggested that a ruling in Mississippi’s favor would serve the “many people [who] vocally just really want[] to…decide [the abortion question] locally….”

But Kavanaugh and Stewart’s implication that pro-choice states could simply continue to permit abortion after the Court upholds Mississippi’s law is somewhat disingenuous. Many liberals and conservatives seem to think that if Roe is overturned, the question of abortion’s legality would automatically vest in the states. This is far from clear. Congress could, if it wished, pass legislation under the Commerce Clause that either prohibited or permitted abortion nationwide, thereby preempting state law. (The Commerce Clause is the most likely constitutional “hook” here because abortions are services sold in interstate commerce). This possibility means that the oft-repeated claim that returning abortion to the states by overturning Roe will lessen the national-level rancor surrounding abortion rests on a false premise.

When Roe was decided in 1973, thirty-one states forbade abortion in all circumstances except to save the life of the mother. Some of these states never repealed their pre-Roe abortion statutes. When the Supreme Court declares a state law unconstitutional, it is not automatically repealed; without legislative action, it stays on the statute books, unenforceable but still a part of the state’s legal code. If Roe is overturned, these “dormant” statutes could easily spring back to life. Thus, a pro-life ruling might not endanger abortion access only in states that, like Mississippi or Texas, passed anti-abortion statutes after 1973 in anticipation of the eventual overturning of Roe. Moreover, although the issue is not definitively settled, recent Court precedent suggests that its decisions about federal law have “full retroactive effect,” at least in civil cases. This raises the possibility that if a plaintiff sues an abortion doctor for conduct that took place before Roe was overturned pursuant to state law, the defendant might not be able to defend herself by claiming that her behavior was constitutionally protected at the time.

One particularly interesting exchange in the Dobbs oral argument concerned the possible effect of overturning Roe on other seminal cases involving reproductive and sexual rights, such as Griswold v. Connecticut — which declared that the right of married couples to buy and use contraceptives is protected by the constitution — or Lawrence v. Texas and Obergefell v. Hodges, which struck down bans on homosexual intimacy and same-sex marriage, respectively. Justice Barrett asked Solicitor General Stewart whether a decision in Mississippi’s favor would have adverse effects on these other decisions. Stewart replied that two features distinguish them from Roe: “Negative stare decisis considerations,” and that none of those other decisions “involve the purposeful termination of human life.” In saying this, Stewart was suggesting two lines of reasoning that the Court’s conservative majority could use to overrule Roe: that Roe doesn’t have the same precedential weight as other “watershed” decisions like Brown v. Board of Education because key elements of Roe were abandoned in Casey, and that states have a compelling interest in fetal life.

However, in a later colloquy between Stewart and Justice Sotomayor in which the latter noted that all of these decisions rested on “substantive due process,” Stewart denied that Griswold, Lawrence, and Obergefell were vulnerable on the grounds that Mississippi is “quite comfortable with Washington v. Glucksberg and how it analyzes substantive due process.” By “substantive due process,” Sotomayor and Stewart were referring to a Supreme Court doctrine according to which the Due Process Clause of the Fourteenth Amendment protects certain substantive rights, such as privacy or autonomy, and not merely procedural rights to judicial process when the government deprives persons of life, liberty, or property. In Roe, the Court held that the Due Process Clause guarantees a right of privacy that includes the right to abortion. The rationales for Griswold, Lawrence, and Obergefell all relied to one extent or another on the substantive due process doctrine. Nevertheless, the very idea of substantive due process is something of a bugbear among conservative lawyers and legal scholars, including some Supreme Court Justices. Thus, Sotomayor was pointing out to Stewart that should the Court overturn Roe by rejecting substantive due process, the other decisions on sexual and reproductive rights could easily fall with it.

Stewart’s reply was to point to the Glucksberg case, decided twenty-five years after Roe, in which the Court held that only rights that are “deeply rooted in the nation’s history” are protected by the Due Process Clause. Stewart was in essence saying that Mississippi was not arguing for abandoning substantive due process, so long as the Court adheres to the Glucksberg standard. By that standard, according to Stewart, abortion rights are not among the rights protected by substantive due process, since abortion rights do not have deep roots in America’s history. The obvious problem with this reply is that rights to birth control, homosexual sex, or same-sex marriage are also not deeply rooted in the nation’s history — a point that Sotomayor began to articulate before being interrupted and sidetracked by Stewart.

This discussion has ventured into the constitutional weeds in order to illustrate the point that the ramifications of the Court’s ruling in Dobbs will crucially depend upon the precise nature of the reasoning it uses to support it. If the Court decides to overrule Roe on the narrow ground that the state has a compelling interest in fetal life, then other substantive due process rights may survive. But if the Court uses Dobbs as an opportunity to affirm and apply the Glucksberg standard, or even to call the doctrine of substantive due process into question, then these other decisions may be left vulnerable to challenge. In general, the Court likes to decide issues on the narrowest grounds possible, but there are exceptions to this rule. Moreover, as I mentioned, there are a number of Justices who are openly hostile to substantive due process as a whole. In that context, a Glucksberg-based decision that preserves substantive due process but potentially affects a host of other important cases might appear to some Justices like a reasonable middle ground. We can only speculate.

The ramifications of Roe’s death are unpredictable. In this column, I have emphasized some possible consequences that add up to a darker picture of life after Roe than even many left-leaning commentators predict. However, there are other possible effects that may be less desirable to the pro-life side. Although studies suggest that overturning Roe will, in the short term, appreciably depress abortion rates — mainly by increasing travel distances between pregnant women and abortion providers — the longer-term effects are less clear. In the years leading up to Roe, many states were liberalizing their abortion laws. As millions of women find themselves wholly cut off from access to safe abortion services, that trend may continue if Congress does not act. In the fullness of time, it is quite possible that the pro-life side will find the death of Roe a Pyrrhic victory.

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Ponderous Chains; or, How the Supreme Court Escapes Precedent

photograph of statue on the steps to the US Supreme Court

Like Jacob Marley, the Supreme Court of the United States wears the chains it formed in life; unlike Jacob Marley, the Supreme Court is not always resigned to be strictly bound by these chains. This is a simile. It is also in the form of a fact-to-fact comparison law students are taught to write in their first year. Such legal similes are a devious device by which the Court slips its ponderous chains — but only in its subtler moments. A court will avoid following a rule while leaving it in place by arguing that it doesn’t apply in a particular case — by “distinguishing” a past binding case from one under consideration. At other times the Court casts-off one of its coils altogether like Dorothy Parker’s apocryphal book. It is this less subtle maneuver that commentators worry about when the make-up of the court radically changes, as it has over the last four years. Now with President Donald Trump poised to name a third justice to the Court, after Neil Gorsuch (replacing Antonin Scalia) and Brett Kavaunagh (replacing Anthony Kennedy), the Court is changing more at one time than it has since the presidency of Franklin D. Roosevelt.

The Supreme Court of the United States (“SCOTUS”) has nine justices. That number is not fixed anywhere as a matter of law, but is how many seats there have been since 1869. That makes 5 to 4 four the ratio for majority opinion. Why does that matter? All courts in the US operate on the basis of a principle called stare decisis, which is Latin for “stand by what is decided.” This principle creates a system of judicial precedents that oblige “lower” courts to rule in a manner consistent with “higher” courts, and creates a strong presumption that a given court will decide in a manner with its own past decisions. For example, decisions of the Supreme Court of Pennsylvania bind the intermediate appeal courts of that state, as well as all of the state trial courts. The decisions of the 3rd Circuit Court of Appeals bind the Federal District Courts of Pennsylvania, New Jersey, Delaware, and the Virgin Islands. And of course the decisions of the SCOTUS bind all other courts: it is the “highest court in the land,” and therefore all other courts are lower with respect to it.

A majority opinion is required for a decision to be binding. Or, more precisely, a single rationale (implicitly) approved by at least five justices is required to bind lower courts. This rule, the “Marks Rule,” was promulgated in Marks v. United States, where the court was primarily concerned with deciding due process issues about the retroactive effect of binding decisions made while other cases are in the process of adjudication. If there is no common rule or rationale embodied by the collective opinions of the justices, then their opinions are merely persuasive rather than binding. When the SCOTUS does issue a majority opinion, in addition to binding lower courts, it also creates a precedent that it will generally hold itself to. Reading a SCOTUS opinion, you will see the justices often refer to past Court decisions as reasons for their decision — sometimes with open distaste. For example, in Grable & Sons Metal Products v. Darue Engineering & Manufacturing, Justice Clarence Thomas invited an opportunity to overrule Court precedent concerning federal court jurisdiction in his opinion concurring with an unanimous court. That is, in the same breath he indicated both “this is the rule” and “I would like to obliterate this rule.” Recently, Thomas also indicated that he would entertain cases aimed at overturning the qualified immunity rule.

Why would a Justice or the Court invite the opportunity to hear cases in order to overturn precedent rather than simply doing it? No court can just issue any decision on any matter it wants to apropos of nothing. There are complicated matters concerning which court (“venue“) can hear which claims (“subject matter jurisdiction“) over which people (“personal jurisdiction“), all of which haunt the sleep of law students. Further, courts usually cannot decide any matters that are not explicitly raised by parties to a legal proceeding: they cannot issue rulings on their own initiative, or “sua sponte.” Finally, the supreme courts of the various states and the United States itself are not generally obliged to hear any particular case. Instead these courts exercise their discretion, guided by their own procedural rules, when determining what cases to hear.

Now the anxiety of liberal Court-watchers becomes clear. With Amy Coney Barrett’s confirmation to the seat made empty by Justice Ruth Bader Ginsberg’s death, the balance of the Court would shift to a clear conservative majority. The conservative bench would comprise Justices Barrett, Kavanaugh, Gorsuch, Alito, Thomas, and Chief Justice Roberts, while the liberal bench would have only Justices Sotamayor, Kagan, and Breyer. In light of this composition, people eager to overturn decisions in disfavor with conservatives (for example, Roe v. Wade) would attempt to obtain review for as many cases that could present an opportunity for the Court to overturn past precedent. Conservative members of the Court might even encourage that in their opinions on related matters. There would then be a new precedent, binding on all lower courts, until a time when a later Court with a different composition might decide to change its mind again. However, as Justices serve until they die, retire, or are removed pursuant to impeachment, it takes a long time for the composition of the court to evolve “naturally.”

In light of the Republicans blocking Obama nominee Merrick Garland during an presidential election year, and their subsequent rush to appoint Amy Barrett in the last few weeks prior to a presidential election, many urge an “artificial” alteration of the Court’s composition. The alternative, increasing the number of seats on the court (i.e., “court packing“), was openly discussed by Democratic presidential candidates Pete Buttgieg, Amy Klobuchar, Cory Booker, and current Democratic Vice-Presidential candidate Kamala Harris. However, that option requires Congressional cooperation and popular support and is likely to create pushback. In all likelihood, Democrats will have to wait a long time to appoint a new Justice to the court, even if Joe Biden wins the 2020 election for President of the United States.