Roe and the Culture War Morass

In the comments to Chris’ excellent post on Roe v. Wade and the culture wars, I wrote:

…The issue, fundamentally, is whether Roe was legally and Constitutionally correct; on that point, you would be surprised the number of legal scholars who have criticized its reasoning.

Importantly, Roe did not define personhood as beginning only at birth for purposes of abortions; nor, obviously, did it define personhood as beginning at conception. Instead, it sought to draw a line between personhood and non-personhood that was inherently arbitrary [N/B: Justice Blackmun’s papers explicitly acknowledge this] in a way that defining it as beginning at birth or at conception would not have been….

But this, to me, is the great problem with Roe – Courts should not put themselves in the position of drawing fundamentally arbitrary lines, which is the province of the legislature.

To which Freddie responded:

No. That was the issue while the decision was being decided. Now the issue is that abortion foes don’t have the popular support to pass a constitutional amendment to change the law.

To a point, I agree: it may well be that this is the issue for many, even most, abortion foes, as well as for many, even most, supporters of Roe.  This is largely why Roe continues to play such a central role in the Culture Wars.

But the shoddy reasoning of Roe very much made this inevitable, and ensures it will continue for quite some time. (For a pro-choice legal scholar’s explanation of why that reasoning was so shoddy and problematic, see this legendary law review article by John Hart Ely written shortly after Roe). 

First, Roe did not occur in a vacuum – it has precedential effects that can go far beyond the issue of abortion law.   More importantly, within the arena of reproductive rights law, its arbitrariness and incoherence create a lot of unnecessary confusion for all sides, confusion that ensures issues related to abortion will continue to make their way through the courts for a very long time – and will thus allow Roe to remain at the center of the Culture Wars.  

And this last leads to the biggest problem of all: Roe’s central place in exacerbating the politicization of the judiciary. 

Probably far more than any other decision, Roe’s arbitrariness was the basis for the popularization of the phrase “legislating from the bench.”   And that’s because, to be perfectly blunt, that’s what it was – although now the phrase has come to mean any unpopular decision.   Prior to Roe, the phrase most often used to accuse a decision of being results-oriented was “Lochner-ing,” in reference to the early 20th-Century finding a 14th Amendment due process right to freedom of contract (obviously, libertarians like me have a somewhat higher opinion than that of Lochner).  In other words, allegedly bad decisions prior to Roe were simply compared to another allegedly bad decision; after Roe, any allegedly bad decision is viewed as something akin to judicial tyranny or a usurpation of power from the legislative branches. 

Moreover, Roe has spawned two massive, opposing movements dedicated to enforcing litmus tests on a judicial nominee’s eligibility for confirmation.  These movements dominate their respective political parties to the point that it is virtually impossible to become anything more than a district court judge without the approval of the movement that resides in the sitting President’s party.  Even with that approval, objections from the movement in the other party can sometimes serve to hold up a nominee for months, years, or even permanently, leaving ever-more unfilled judicial vacancies.

In other words – not only did Roe ignite a central battle in the Culture Wars, it also ensured – and continues to ensure – that the judiciary itself would become a central battle in those wars. 

Justice O’Connor’s opinion in Casey made a valiant attempt to escape this morass while adhering to fundamental principles of stare decisis.    She rescued Roe’s central holdings while making it more flexible and coherent; unfortunately, she still needed to draw some rather arbitrary lines to do this, even if they’re less arbitary than Roe’s original framework and despite the claim that the line she draws (viability with exceptions for health and life up until birth) is rational.  There’s really no good judicial reason for drawing the line at viability instead of, say, sentience or heartbeat or “quickening”; along similar lines, the prohibition on placing an “undue burden” on the right to a pre-viability abortion guarantees almost never-ending litigation as to what constitutes an “undue burden.”  And, finally, as Justice O’Connor recognized, the date of “viability” can change based on advances in science and technology; this means that new laws will regularly be implemented to take advantage of these advances as justifications for new attempts at restricting abortions.  All of which is to say that even Casey is unsuccessful at getting the courts out of the Culture War battle that Roe spawned.

So how do we get abortion removed as a focal point of the Culture Wars?  Here I tend to think that Damon Linker is correct: overturn, or at least significantly narrow, Roe and its progeny including Casey (though not the important predecessor case Griswold v. Connecticut, which is the basis for the “right to privacy” and was correctly decided even if it shouldn’t have couched the right in terms of “penumbras”).  Return the issue to the state legislatures, who will on average settle on something approximating the status quo.  Somewhat amusingly, the stare decisis limitations upon which Casey partially based its reaffirmation of Roe are a bit less restrictive after the Court overturned Bowers v. Hardwick in Lawrence v. Texas.

As for the issue of a “reverse identity politics movement,” I find this somewhat unlikely; the pro-choice movement is already something of a “reverse identity politics movement,” trafficking in constant threats that “abortion rights hang on the thread of just one vote.”  Since in most states the result would be something approximating the status quo anyhow, the fear of abortion rights disappearing overnight would rapidly dissipate in those states.  And in the handful of states where abortion was heavily restricted, pro-choice advocates would be too small in number to form a nationally influential movement.

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12 thoughts on “Roe and the Culture War Morass

  1. /yawn

    I’ll swallow this mess of pottage if you can tell me how teh “terribly flawed” Roe v Wade is substantially different in mechanism or form from Brown v Board or Loving v Virginia.
    To me, they are all three isomorphic.
    Judgements rendered to protect the rights of individual citizens against the tyranny of the mob.
    From a pragmatic viewpoint, it is inconcievable that the state could subsume the autonomy of a citizens body.
    Restated, citizens simply cannot be forced to be wombs for the State against their will.
    Step away from teh crackpipe boiz.
    Roe v Wade is here to stay.

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  2. Matoko – have you ever actually read Roe? Roe does not provide nearly the absolute rights you seem to credit it with, and Casey, which updated Roe, provides less. Justice Blackmun himself acknowledged that the decision to use the trimesters as dividing lines between when a fetus is a “person” and “not a person” and between when a state could make a regulation for the health of the mother and no regulations at all was completely arbitrary (and yes, he used the word arbitrary). Moreover, Roe’s application of Griswold’s right to privacy is illogical.

    Roe and its progeny, unlike Brown or Loving, provide very few clear rules – or even paths to creating clear rules – for what is and is not acceptable regulation. This fact ensures that cases will continue coming to the Court for decades, with very little ever accomplished. It also ensures that abortion will remain a litmus test issue for both parties for some time to come, and in a way that needlessly politicizes the judiciary.

    The fact is that Roe is a poorly written decision, even if I might agree with the result as a matter of policy. Had Roe avoided getting into the type of balancing test usually reserved for legislatures it would not have become such a focal point for unending controversy and litigation.

    The Court in Roe had three choices: create an absolute right to an abortion up to the time of birth, leave the issue entirely up to the states as was historically the case, or, unique in the history of American jurisprudence, fashion an arbitrary dividing line somewhere in between. Had it created an absolute right to an abortion up to the time of birth, it would have been on much firmer ground. Yes, it would have created more anger, but that anger would have eventually subsided as there would not have been any basis for future abortion cases to return to the Court. Same thing if they had just left things to the states.

    But that’s not what they did. If you still think Roe is unassailable legal reasoning, I would strongly recommend you read the law review article I linked to above, which was written by a respected scholar who was pro-choice. There are many other criticisms of the decision that are similar in nature, all from scholars and commentators who agreed with the decision as a matter of policy.

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  3. Dave Hunter:
    Are you referring to me with that? Because I’m not sure where I implied that I’m in favor of results-oriented decisions. (If you’re referring to my remark about Lochner, I’d just note that in my opinion Lochner was correctly decided as a matter of law and that the cases that semi-overturned Lochner were the results-oriented cases…but that’s completely OT).

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  4. Matoko, as a matter of principle, do you support the decision in Lochner?

    Mark, as a quick point, I think there was an article written by David Bernstein commemorating the 100th anniversary of Lochner and his argument was that Lochner did not take center stage as an example of “judicial activism” (an awful an intellectually bankrupt term if there ever was one) until AFTER Roe.

    If I remember Howard Gillman’s work in the The Constitution Beseiged (one of the best works on pre-1937 14th Amendment jurisprudence despite excluding any discussion of Meyer and Pierce), Lochner was basically overturned by 1915 or so. By that time, the last major hurdle was minimum wage laws.

    Lochner was not the Progressive rallying cry that Adkins was or even Hammer v Dagenhart with respect to child labor laws.

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  5. Dave: As much as I respect David Bernstein, if he made that argument, that argument would appear to be wrong, as the Ely law review article, written very shortly after Roe, discusses in a pretty fair amount of detail the way in which unpopular pre-Roe, post-New Deal decisions were dismissed as being “Lochner-ing.”

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  6. Hey – it’s a difficult issue, and the Ely article is usually not remembered for its discussion of the hyperbolic use of “Lochner-ing.” I only picked up on it when I re-read it; had I not done so, I wouldn’t have thought to include that point in this post.

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  7. Mark Thompson;

    Sorry for not being more clear. Yes, it seems to me like you’re writing in favor of results-oriented judicial decisions, due to sentences like this:

    ‘So how do we get abortion removed as a focal point of the Culture Wars? Here I tend to think that Damon Linker is correct: overturn, or at least significantly narrow, Roe and its progeny including Casey”

    The subject of how various reworkings the results of judicial decisions would satisfy current prejudices is, I think, a gross topic for conversation.

    However, I agree with you that the reasoning in Roe fails because it doesn’t directly provide an absolute right to an abortion. In my uneducated view, the correct decision would have been to provide states with an alternative between providing absolute abortion rights, or an absolute right to life for the fetus beginning at conception. Similar to the choice provided by the California Supreme Court in “In re Marriage Cases.”

    However, I don’t want this arbitrariness enshrined in law by state legislatures any more than by the Supreme Court. I believe that these arbitrary lines are shaped by prejudice and violate the spirit of the Constitution.

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