Abortion Law in Tennessee
Part One: Why were Roe and Casey overturned?
On April 22, 2019, the Tennessee General Assembly passed the Human Life Protection Act. At the time, it was just words on a sheet of paper with no immediate legal effect. As of today, that is no longer the case. Abortion is illegal in Tennessee.1
When it was passed, Roe v. Wade and Planned Parenthood v. Casey were still the “law of the land.” In those opinions, the Supreme Court of the United States declared that a woman had the right to an abortion. They prohibited Congress and the States from imposing any undue burden on a woman seeking to obtain an abortion before the “potential life” reaches the point of viability.
So, since it could not legally ban abortion at the time, the Tennessee General Assembly passed what is known as a “trigger law” which would ban abortion when those opinions were overturned or superseded by constitutional amendment.2 On June 24, 2022, the Supreme Court of the United States issued a 213-page opinion in Dobbs v. Jackson Women’s Health Org. which did exactly that.
There has been quite a bit of fear-mongering and hysteria in the wake of all of this news. Just look at some of these headlines:
The end of Roe will be a death sentence for many Black women
‘A matter of life and death’: maternal mortality rate will rise without Roe, experts warn
Birth control is the next right Republicans plan to eliminate
LGBTQ community braces for rollback of rights after abortion ruling
Confusion post-Roe spurs delays, denials for some lifesaving pregnancy care
A pregnancy turns deadly in an anti-abortion state. What happens next?
As a pro-life healthcare attorney in Tennessee, I thought it may be helpful to answer some questions and rationally address some fears people may have. So, in this series, I will answer three questions:
Why were Roe and Casey overturned?
What does Dobbs mean here in Tennessee?
What happens next?
Why were Roe and Casey overturned?
Introduction
The Dobbs Court held that the Constitution of the United States does not confer a right to an abortion. But why? What changed since Roe and Casey were decided?
In today’s cynical, politically-charged environment, many seem to think it was just the result of decades of Republican efforts to “take over” the Court and force their evangelical Christian beliefs on the American people. As is almost always the case, though, the truth is much more complicated than the popular narrative.
Of course, it has always been clear that the Constitution does not anywhere in its pages use the word abortion. So, why did the Supreme Court say that it guaranteed a right to abortion in the first place?
The Right to Privacy
In Roe, the Supreme Court determined that the right to an abortion was an extension of the “right of personal privacy,” which it defined to be “a guarantee of certain areas or zones of privacy.” In doing so, the Court relied on a line of cases which had found “at least the roots of that right” either in the “penumbras, formed by emanations”3 from the specific guarantees in the Bill of Rights4, or in the Due Process Clause of the Fourteenth Amendment5 which bars the government from depriving anybody of "liberty" without due process of law.6
What is Liberty?
However, the Roe Court rightly stated that all of these decisions make clear that the right to privacy only includes “personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty.’”7 Indeed, the Supreme Court's cases in this area often involve a significant amount of exploration of our nation's history and tradition in order to determine whether the right in question is so fundamental and historical to be rightly considered to be incorporated within the word "liberty" in the Due Process Clause.
As the Dobbs Court explained:
Historical inquiries of this nature are essential whenever we are asked to recognize a new component of the ‘liberty’ protected by the Due Process Clause because the term “liberty” alone provides little guidance….
In interpreting what is meant by the Fourteenth Amendment’s reference to “liberty,” we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy. That is why the Court has long been “reluctant” to recognize rights that are not mentioned in the Constitution….
As the Court cautioned in Glucksberg , “[w]e must . . . exercise the utmost care whenever we are asked to break new ground in this field, lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court.”
Roe and Casey’s Struggle with History and Tradition
The Roe Court made a feeble attempt to engage in this historical analysis. It cited evidence that abortion was common among Greek, Roman, and Persian civilizations and that “[a]ncient religion did not bar abortion.” It shrugs off the Hippocratic Oath, originating in 4th century BC and which remains to this day synonymous with medical ethics, bars physicians from providing any “abortive remedy.”8
The Roe Court went on to argue that early common law allowed for abortion before “quickening,” which was the first recognizable fetal movement, usually occurring between the 16th and 18th week of pregnancy and treated it as a lesser crime than homicide after that point. However, the Dobbs Court provides extensive explanation as to why these conclusions were erroneous.9 Roe relied on two subsequently discredited academic articles by a pro-abortion advocate as evidence that Sir Edward Coke, widely regarded as the greatest English jurist of the Elizabethan and Jacobean eras, had mischaracterized the common law of abortion. Even further, the Dobbs Court points out that even if the erroneous history of common law presented by the Roe Court were true and abortion in some stages was not a crime, it still does not point to a positive right under the law to have an abortion.
Even the Roe Court pointed out that England enacted a statute in 1803 which codified the common law crime of abortion as a felony both before and after quickening (making it a capital crime after quickening) and that it remained a crime until their liberalizing reforms began in 1967 (just 6 years before Roe decision was issued). Somehow, the Roe Court focused on the very then-very-recent legislation in England as better evidence for our nation’s “history and tradition” with respect to fundamental liberty than the law that was in place through the 18th, 19th, and earlier 20th centuries.
In analyzing the history of American law, the Roe Court admitted that all but a few States had adopted the pre-existing common law rules criminalizing abortion. It pointed out that New York’s statutory ban of abortion in 1828 would serve as a model for other states, but argues that it somehow supports a right to abortion because it had lesser penalties for abortion occurring before quickening (though it was still considered a crime). The Roe Court points out that during the years following the Civil War, most states began to adopt legislation to replace the common law which were even more harsh toward abortion. But, in an incredible twist of reason, the Roe Court argues that the fact American law treated abortion with increasing disfavor, from common law to 19th century statutory reforms, all of which had considered abortion to be criminal, somehow indicated that criminalization of abortion was a recent phenomenon and not something rooted in American history and traditions.10
In any event, the Dobbs Court demonstrated that abortion was a crime (regardless of stage of pregnancy) in 41 of the 50 states in 1868 when the Fourteenth Amendment was ratified.11 It also notes that of the 9 states that had not yet criminalized abortion, all but one would do so by 1910.
Turning away from this historical analysis, where it is clear that abortion has long been considered a criminal act, the Roe Court pointed to then-very-recent changes in public positions of the American Medical Association12, the American Public Health Association13, and the American Bar Association14 between 1970 and 1972. As pointed out by the Dobbs Court, this is “the sort of fact-finding that might be undertaken by a legislative committee…. The [Roe] Court did not explain why these sources shed light on the meaning of the Constitution, and not one of them adopted or advocated anything like the scheme that Roe imposed on the country.”
Despite the incredible lack of historical support for such a right to be considered “implicit in the concept of ordered liberty,” the Roe Court moved ahead with, and the Casey Court reasserted, the notion that the right to abortion is embedded within the word “liberty” in the Due Process Clause of the Fourteenth Amendment. Even the liberal wing of the Court in its dissent to Dobbs admitted that it cannot show that a constitutional right to abortion has any foundation, let alone a “deeply rooted” one in the nation’s history and tradition. As the Dobbs Court pointed out, the following facts are undisputed:
abortion was illegal at common law at least after quickening;
the 19th century saw a trend toward criminalization of pre-quickening abortions;
by 1868, a supermajority of States (at least 26 of 37) had enacted statutes criminalizing abortion at all stages of pregnancy;
by the late 1950s at least 46 States prohibited abortion “however and whenever performed” except if necessary to save “the life of the mother;” and
when Roe was decided in 1973 similar statutes were still in effect in 30 States.
As Dobbs put it, “The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions.” Indeed, the Dobbs dissenters don’t really even attempt to argue this point. Instead, they argue that the Due Process Clause of the Fourteenth Amendment means something different now than it did when it was written. They argue that the concept of liberty has evolved and now involves different rights than originally envisioned.
They argue that the Supreme Court can consider this evolving standard while remaining grounded in constitutional principles, history, and precedents. However, as the Dobbs Court correctly points out, Roe’s reasoning cannot be supported with pre-existing constitutional principles, history, or relevant precedent. It simply created them out of whole cloth in response to changes in public opinion.
That is not what the Supreme Court is meant to do. They are unelected men and women with lifetime appointments. They have virtually zero political accountability. The framers of our Constitution never would have entrusted such persons with that kind of policy-making power. That was reserved for the legislative bodies: Congress and state legislatures.15 As Blackstone wrote, a judge is sworn "to determine, not according to his own private judgement, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one."16
Article III of the Constitution vests the “judicial power” of the United States in the Supreme Court and authorizes it to oversee all cases arising under the Constitution, federal law, and treaties. The judicial power is that power described by Blackstone: the power to “discover” or interpret the law, not to “pronounce” or make the law.
The Dobbs dissenters would have us believe that this limited view of judges shackles us to an obsolete Constitution, unable to adapt to modern times. However, Article V provides an explicit process by which the Constitution can be amended in the event it needs to change with the time. Nowhere in that process does it mention a role for the Supreme Court. It is the job of the legislature, either through Congress or a convention called by the state legislatures.
As the Dobbs Court points out, even pro-choice academic commentators have agreed that Roe’s reasoning was “exceedingly weak.”17 Even Ruth Bader Ginsburg felt it was a faulty decision.18 Although she found its reasoning problematic, her chief complaint was that it actually hurt the abortion rights movement by removing the issue from the legislatures when the movement was finally gaining momentum in passing favorable pro-choice laws.
In the end, there simply is no reasonable justification for Roe and Casey from a constitutional law perspective. Note that none of this is based on a policy argument. Whether you believe abortion should be legal without limits or illegal without exception, or anywhere in between, there simply is no sound legal argument to hold that a right to abortion is found within the pages of the Constitution.
Stare Decisis
The Dobbs Court did not stop there. Even a wrongly decided Supreme Court opinion must not be lightly overturned. The judicial system has long held to a concept known as stare decises. Simply put, stare decisis is a fancy way of saying once the Court makes a decision, it doesn’t reverse course unless there is a very good reason to.19 But, it is not absolute. The Supreme Court has overturned prior rulings on many occasions.20
The important thing is that Dobbs outlined five specific reasons why stare decisis does not control in reviewing the Roe and Casey cases:
the nature of their error21,
the quality of their reasoning22,
the “workability” of the rules they imposed on the country23,
their disruptive effect on other areas of the law24, and
the absence of concrete reliance25.
Each of these factors point to why stare decisis is insufficient to support Roe and Casey in light of their lack of Constitutional support.
The Dobbs Court also addressed concerns that the decision to overturn Roe and Casey should be avoided simply because it risks undermining public confidence in the Court and could create the impression that it decides cases based on “social and political pressures.” However, the Dobbs Court rightly points out that the Roe and Casey decisions themselves certainly did nothing to alleviate that impression among the general population. The Court has clearly only been perceived as more politically motivated since those decisions were rendered than it was before.
Even more importantly, the Dobbs Court explained:
We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision. We can only do our job, which is to interpret the law, apply longstanding principles of stare decisis, and decide this case accordingly.
Conclusion
And that’s exactly what the Dobbs Court did. It applied sound reasoning and Constitutional law and came to the only logical conclusion: the United States Constitution does not confer a right to abortion.
Note what this post did not reference. Nowhere did it refer to Biblical arguments or the question of when life begins. Nowhere did it address whether exceptions should exist for the life/health of the mother, rape, or incest. That’s because those things are irrelevant to the question that the Dobbs Court had to answer: does the Constitution guarantee pregnant women the right to an abortion?
It does not. Now, does that mean that nobody can have an abortion? No. It means that the question of whether or not they should, when it should be allowed, who should pay for it, and all of these other policy questions should rightly be determined by the people’s elected representatives in Congress and State legislatures.
That is why Tennessee’s Human Life Protection Act is now effective. After decades of barring legislatures from being able to resolve the question of abortion through the regular political process, democracy is allowed to do its work again. The General Assembly, as representatives of Tennesseans across the State, passed a law.
In my next post in this series, I will take a look at what that law says and how it answers some of the difficult questions of abortion. I will also discuss some of the practical issues that arise from it.
I will discuss further what that means, the exceptions under present law, and some of the practical issues that arise in my next post. Also, I know that most abortions were illegal in Tennessee before today. The “Heartbeat Bill” went into effect over a month ago, banning most abortions after six weeks. But, as of today, those protections are in place for all unborn children from the moment of fertilization.
Technically, the law goes into effect “on the thirtieth day following . . . [t]he issuance of the judgment in any decision of the United States Supreme Court overruling [Roe and Casey], thereby restoring to the states their authority to prohibit abortion.” And the judgment is separate from the opinion itself. Hence why this law is just now going into effect even though the opinion overturning Roe was issued back in June.
This famous quote comes from an opinion authored by Justice William O. Douglas in Griswold v. Connecticut and referenced by the Roe Court in its opinion.
None of the prior opinions the Roe Court cited related to a “right to privacy” found within the Bill of Rights are at all compelling. Here is a summary of what those cases said:
“Congress shall make no law . . . abridging the freedom of speech or of the press” (the First Amendment) establishes a “right to receive information and ideas.” Stanley v. Georgia (this clearly has nothing to do with abortion and is also very much in keeping with the express language of the First Amendment).
“[T]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” (the Fourth Amendment) prevents a police officer from doing a “stop and frisk” on an individual walking down the street with a “reasonable expectation of privacy” without “ample factual justification.” Terry v. Ohio. It also protects against government “eavesdropping” and recording of oral statements and conversations to which the individual has a reasonable expectation of privacy. Katz v. United States. (Both of these cases clearly have nothing to do with abortion and are simply specific applications of the express language of the Fourth Amendment.)
The right to not be “compelled, in any criminal case, to be a witness against [your]self,” (the Fifth Amendment) along with the right against unreasonable searches and seizures (the Fourth Amendment) prevents the government from requiring someone to produce evidence to be used against him in the prosecution for a crime without first getting a proper judicial writ upon a showing of probable cause. Boyd v. United States (again, this has nothing to do with abortion and is simply a specific application of these amendments).
The Ninth Amendment’s statement that "[t]he enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people” is also cited by the Court, which says it is “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy".” The problem here is that the Court takes absolutely no steps to explain just how broad it is, and why it isn’t also broad enough to encompass the unborn child’s right to life. How do we pick and choose which rights fit into the Ninth Amendment?
The Due Process Clause of the Fourteenth Amendment says that no state can “deprive any person of life, liberty, or property, without due process of law….”
The Roe Court expressed that it leaned toward the Due Process Clause as the proper place to place the right, but stopped short of naming a particular home for the right in the Constitution. In Casey, the Court specifically stated that the right was derived from the Due Process Clause. This doctrine, that the Due Process Clause carries with it certain affirmative rights that are essential aspects of liberty, is known as “substantive due process.”
Interestingly, this standard was accepted and applied by Justice Ruth Bader Ginsburg, hero to many abortion rights advocates, in her opinion in Timbs v. Indiana in which she said the rights protected under the Due Process Clause must be “fundamental to our scheme of ordered liberty or deeply rooted in the Nation’s history and tradition.” She went on to trace the right against excessive fines back to the Magna Carta, Blackstone’s Commentaries, and 35 of the 37 state constitutions in effect at the time the Fourteenth Amendment was ratified.
The Roe Court dismissed the Oath by citing a single 20th-century scholar who theorized that the Oath represented only a small segment of Greek opinion.
Here’s the Dobbs Court’s analysis (citations omitted):
The eminent common-law authorities (Blackstone, Coke, Hale, and the like), all describe abortion after quickening as criminal. Henry de Bracton’s 13th-century treatise explained that if a person has “struck a pregnant woman, or has given her poison, whereby he has caused abortion, if the foetus be already formed and animated, and particularly if it be animated, he commits homicide.”
Sir Edward Coke’s 17th-century treatise likewise asserted that abortion of a quick child was “murder” if the “childe be born alive” and a “great misprision” if the “childe dieth in her body.” (“Misprision” referred to “some heynous offence under the degree of felony.”) Two treatises by Sir Matthew Hale likewise described abortion of a quick child who died in the womb as a “great crime” and a “great misprision.” And writing near the time of the adoption of our Constitution, William Blackstone explained that abortion of a “quick” child was “by the ancient law homicide or manslaughter”, and at least a very “heinous misdemeanor”.
English cases dating all the way back to the 13th century corroborate the treatises’ statements that abortion was a crime. In 1732, for example, Eleanor Beare was convicted of “destroying the Foetus in the Womb” of another woman and “thereby causing her to miscarry.” For that crime and another “misdemeanor,” Beare was sentenced to two days in the pillory and three years’ imprisonment.
Although a pre-quickening abortion was not itself considered homicide, it does not follow that abortion was permissible at common law—much less that abortion was a legal right. Quite to the contrary, in the 1732 case mentioned above, the judge said of the charge of abortion (with no mention of quickening) that he had “never met with a case so barbarous and unnatural.” Similarly, an indictment from 1602, which did not distinguish between a pre-quickening and post-quickening abortion, described abortion as “pernicious” and “against the peace of our Lady the Queen, her crown and dignity.”
That the common law did not condone even pre-quickening abortions is confirmed by what one might call a proto-felony-murder rule. Hale and Blackstone explained a way in which a pre-quickening abortion could rise to the level of a homicide. Hale wrote that if a physician gave a woman “with child” a “potion” to cause an abortion, and the woman died, it was “murder” because the potion was given “unlawfully to destroy her child within her.” As Blackstone explained, to be “murder” a killing had to be done with “malice aforethought, . . . either express or implied.” In the case of an abortionist, Blackstone wrote, “the law will imply [malice]” for the same reason that it would imply malice if a person who intended to kill one person accidentally killed a different person:
[I]f one shoots at A and misses him, but kills B, this is murder; because of the previous felonious intent, which the law transfers from one to the other. The same is the case, where one lays poison for A; and B, against whom the prisoner had no malicious intent, takes it, and it kills him; this is likewise murder. So also, if one gives a woman with child a medicine to procure abortion, and it operates so violently as to kill the woman, this is murder in the person who gave it.
Notably, Blackstone, like Hale, did not state that this proto-felony-murder rule required that the woman be “with quick child”—only that she be “with child.” And it is revealing that Hale and Blackstone treated abortionists differently from other physicians or surgeons who caused the death of a patient “without any intent of doing [the patient] any bodily hurt.” These other physicians—even if “unlicensed”—would not be “guilty of murder or manslaughter.” But a physician performing an abortion would, precisely because his aim was an “unlawful” one.
Irony abounds in this Roe Court argument. First of all, it ignores that the time period when these statutes criminalizing abortion are proliferating is exactly the time period when the Fourteenth Amendment was passed. So, it requires us to be believe that the Fourteenth Amendment meant to include a right to do something that most states were at that time rapidly passing laws to criminalize. Second, the Roe Court makes this argument dismissing the importance of 1860s American statutory reforms immediately after stressing the importance of 196os statutory reforms in England!
The Dobbs opinion includes appendices which quote the statutes the in effect in all of the 37 states and the territories that would become the last 13 states.
From its formation until 1967, the AMA reflected the “anti-abortion mood prevalent in the county in the late 19th century . . . [and] shared by the medical profession.” In 1967, the AMA considered a proposal to recommend additional exceptions for criminal abortion and, in 1970, adopted resolutions which reflected “polarization of the medical profession on this controversial issue.” It adopted resolutions asserting that “abortion is a medical procedure that should be performed by a licensed physician in an accredited hospital only after consultation with two other physicians and in conformity with state law, and that no party to the procedure should be required to violate personally held moral principles.”
In October 1970, the Executive Board of the APHA adopted Standards for Abortion Services, none of which actually dealt with when abortions should be performed, but identified best practices for when they were performed.
In February 1972, the ABA House of Delegates approved, in a contested vote, approved a model act based on New York’s recent law legalizing unlimited abortion prior to 20 weeks and allowing for certain exceptions after 20 weeks.
See Hamilton, Federalist No. LXXXI in which Hamilton responds to specific concerns regarding “the supposed danger of judiciary encroachments on the legislative authority” by asserting that “[t]here never can be danger that the judges, by a series of deliberate usurpations on the authority of the Legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations.” Unfortunately, it appears Hamilton greatly overestimated Congress’s desire to keep the Supreme Court in check. In fact, Congress has largely been eager to acquiesce to the Supreme Court’s usurpations of legislative authority on controversial topics they do not want to have to answer for to their constituents.
William Blackstone, Commentaries on the Laws of England Vol. 1, at 69 n.5.
The United States Conference of Catholic Bishops has compiled a good list of these statements:
Any legal basis for Roe was challenged immediately following its announcement even by scholars who support legal abortion.
In 1973, John Hart Ely, a professor of law at Yale Law School, writing in the Yale Law Journal said, Roe v. Wade is "a very bad decision...It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be."
The same year, Harvard law professor, Laurence Tribe wrote, "One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found."
Earlier this year, Benjamin Wittes, a Washington Post legal affairs writer noted, "Since its inception Roe has had a deep legitimacy problem, stemming from its weakness as a legal opinion."
Perhaps, most interesting of Roe's commentators is Edward Lazarus, a former law clerk to Justice Harry Blackmun, Roe's author. Lazarus, who describes himself as someone who loved Blackmun "like a grandfather" called Roe "one of the most intellectually suspect constitutional decisions of the modern era" and "a jurisprudential nightmare."
Lazarus has also commented on Casey. He said the Casey opinion was "not an act of constitutional interpretation or lawmaking. Instead, it was an act of judicial and political diplomacy – one designed to extricate the Court from the eye of the abortion rights storm."
There are many important reasons for stare decisis. Here are some listed in Dobbs:
It protects the interests of those who have taken action in reliance on a past decision.
It reduces incentives for challenging settled precedents, saving parties and courts the expense of endless relitigation.
It fosters evenhanded decisionmaking by requiring that like cases be decided in a like manner.
It contributes to the actual and perceived integrity of the judicial process.
It restrains judicial hubris and reminds us to respect the judgment of those who have grappled with important questions in the past.
See Brown v. Board of Education (overruling Plessy v. Ferguson); West Coast Hotel Co. v. Parrish (overruling Adkins v. Children’s Hospital of D. C.); West Virginia Bd. of Ed. v. Barnette (overruling Minersville School Dist. v. Gobitis); Obergefell v. Hodges (overruling Baker v. Nelson); Citizens United v. Federal Election Comm’n (overruling Austin v. Michigan Chamber of Commerce); Lawrence v. Texas (overruling Bowers v. Hardwick) (there are many more… the Dobbs footnote listing just some such overrulings went for nearly two full pages).
The Dobbs Court cited a dissent by Justice White in Thornburgh that “decisions that find in the Constitution principles or values that cannot fairly be read into that document usurp the people’s authority, for such decisions represent choices that the people have never made and that they cannot disavow through corrective legislation. For this reason, it is essential that this Court maintain the power to restore authority to its proper possessors by correcting constitutional decisions that, on reconsideration, are found to be mistaken.”
As the Dobbs Court put it:
Roe found that the Constitution implicitly conferred a right to obtain an abortion, but it failed to ground its decision in text, history, or precedent. It relied on an erroneous historical narrative; it devoted great attention to and presumably relied on matters that have no bearing on the meaning of the Constitution; it disregarded the fundamental difference between the precedents on which it relied and the question before the Court; it concocted an elaborate set of rules, with different restrictions for each trimester of pregnancy, but it did not explain how this veritable code could be teased out of anything in the Constitution, the history of abortion laws, prior precedent, or any other cited source; and its most important rule (that States cannot protect fetal life prior to “viability”) was never raised by any party and has never been plausibly explained. Roe’s reasoning quickly drew scathing scholarly criticism, even from supporters of broad access to abortion.
The Casey plurality, while reaffirming Roe’s central holding, pointedly refrained from endorsing most of its reasoning. It revised the textual basis for the abortion right, silently abandoned Roe’s erroneous historical narrative, and jettisoned the trimester framework. But it replaced that scheme with an arbitrary “undue burden” test and relied on an exceptional version of stare decisis that . . . this Court had never before applied and has never invoked since.
The Roe standard based on a viability threshold was quickly jettisoned by the Court and replaced with an ambiguous “undue burden” standard in Casey, but this standard also proved unworkable. As Justice Scalia noted in his Casey partial dissent, determining whether a burden is “due” or “undue” is “inherently standardless.” While Casey attempted to flesh it out, it’s three “rules” created more questions than answers. The Casey case proved the unworkability of its own rules in that the Court was fractured with different justices reaching different conclusions in applying the same standard. The ambiguity of the standard has proven very difficult for underlying courts to apply consistently, generating a long list of Circuit splits. “Continued adherence to that standard,” as the Dobbs Court rightly concluded, “would undermine, not advance, the evenhanded, predictable, and consistent development of legal principles.”
As the Dobbs Court put it:
The Court’s abortion cases have diluted the strict standard for facial constitutional challenges. They have ignored the Court’s third-party standing doctrine. They have disregarded standard res judicata principles. They have flouted the ordinary rules on the severability of unconstitutional provisions, as well as the rule that statutes should be read where possible to avoid unconstitutionality. And they have distorted First Amendment doctrines.
One of the primary purposes of stare decisis is to prevent people from being harmed for living their lives in reliance on the prior law, only to find out that the rules have suddenly changed and made them worse off for having complied with the previously applicable law. Even the Casey opinion noted that traditional reliance does not exist here because getting an abortion is generally “unplanned activity,” and “reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions.”
Instead, Casey relied on a more intangible sort of reliance based on the fact that “people [had] organized intimate relationships and made choices that define their views of themselves and their places in society . . . in reliance on the availability of abortion in the event that contraception should fail” and that “[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”
But, as Dobbs points out, this suggested reliance factor is immeasurable and not the kind of thing the Supreme Court is equipped to base its decisions on. Rather, these are exactly the kinds of policy questions that the legislature is meant to answer.