Will Roe v. Wade Be Overturned?


i'm jeffrey rosen. President and ceo the national constitution center and welcome to we the people who weekly show of constitutional debate. The national constitution center is a nonpartisan. Nonprofit chartered by congress to increase awareness and understanding of the constitution among the american people. Supreme court recently agreed to hear a challenge to a mississippi law banning abortion at fifteen weeks. The case could call into question. The future of roe v wade on today's we the people we break down the constitutional arguments for and against row. So that you we. The people listeners can make up your own minds and To do that. We're privileged to be joined by of america's leading scholars of the constitution. Lebron is assistant professor of law at michigan law. She's also one of the co hosts and creators of strict scrutiny. A podcast about the. Us supreme court Leah it is wonderful to have you back on the show. It's great to be back. Thanks for having me and theresa stanton. College is professor at the university of saint thomas school of law where she serves as director of the schools. Pro-life center theresa. It is wonderful to welcome to the people delighted to be included. Thank you We have a series of constitutional arguments to break down including arguments about liberty. Equality natural law and precedent. So let's take each of those in turn in roe v. Wade justice blackmun routed a right to privacy in the fourteenth amendment's conception of personal liberty and restrictions on state action Leah tell us how justice blackmun rooted right to choose abortion in the liberty clause of the fourteenth amendment and whether you find his arguments persuasive so i think to answer that question. It's helpful to have a sense about what substantive due process is because that's really the area of law that justice blackmun west relying on some listeners. Might be familiar with the concept of procedural due process. The idea that the state can't deprive you of life liberty or property unless it uses the very best procedures. Let's think of a criminal. Trial noticed hearing council full blown. Procedures substantive due process is a little bit different in that context. The question is whether the state. Kim prohibits certain activity at all that is even if the state uses the best procedures or processes trials. There still some things that the state just can't regulate or prohibit and it's that area of law that justice blackmun was relying on in roe versus wade saying that the decision to carry a pregnancy to term is a protected. Liberty under the due process clause such that estate can't prohibit or require you to carry a pregnancy to term so in that context justice blackmun relied on an area of law and doctrine substantive due process. That by that point had become fairly well settled. That is by the time. The court decided roe versus wade. The court had already held that the state can't prohibit married couples unmarried individuals from purchasing or using contraception so the ability to bear or beget field. And control your reproductive. Health is already a protected. Liberty under the due process clause by the time of roe versus wade and even before those decisions. The court had held that certain family matters like the decision of how to raise your children or educate them was also protected. Liberty under the due process clause in decisions like meyer. Npr's i think in light of those decisions as well as a few others. And the only other one that i would throw out is roshan versus california. A super important due process clause case in which the court said it offended the principles of liberty protected in the due process clause for the state to forcibly extract the contents of someone's stomach in order to collect evidence and i think that principle of bodily autonomy together with the idea that whether to bear beget a child and family care all of that is protected. Liberty under the due process clause is part of what supports roe versus wade. Thanks so much for that. To recently leah has set out the doctrine of substantive due process and said that decisions in the twentieth century Protecting rights of marital privacy and educational autonomy provide a foundation for the right justice. Blackmun identified in. Row you've argued that neither. The text of the constitutional amendments explicitly addressed the question of abortion and that america and early english law consistently treated abortion with strong disfavor. Tell us whether or not you find justice. Blackmun starvation of a right to choose abortion in the substantive component. The due process clause persuasive. Well leah of course tried to characterize this is just a natural outcome of along progression of cases in that simply is not an accurate historical depiction when we talk about griswold versus connecticut. Which was the case in which the supreme court reversed its prior position and said that states could not regulate the use of contraception between married couples That was only in one thousand nine hundred sixty five remember that roe versus wade was in one thousand nine hundred seventy three so to call that a historic precedent in terms of long long in effect is simply not correct and it was in nineteen seventy two when the court rendered the eisenstaedt opinion which is where the court extended this right to use contraception to unmarried individuals using a completely different rationale. So there was not a long history in fact. And there's When you read about the court's consideration of this question the fact that they re heard oral arguments twice in the case that the the justices changed in their composition and in their opinions regarding the case as very justices withdrew or resigned. It's simply not that. This is a natural progression of the law. In fact it was a significant break in the law. The court tries to justify in part by a very boulder is if he will his history of abortion that frankly the courts never relied on sense. They used a single article written by an abortion advocate to say that the only reason that abortion was illegal in the common law and throughout the united states at the time was because the the legislatures were trying to protect women and that in fact in the early common law it wasn't even illegal until after quickening but when you actually go back and look at the early english cases and you look at the legal history of abortion what you find are references to the unborn child and it is true that in the early common law a woman had to be quick with child before criminal proceedings could be initiated. That's because from an evidentiary point. How do you even prove the woman's pregnant without ultrasound with some of the the medical advances we've made since the early common law and so if it's a capital crime you wanna make sure that in fact a crime occurred so we now have a much better comprehensive understanding of the history of abortion again. The court is not relied on that historical analysis since row and in planned parenthood versus casey. They significantly moved their position as to its justification. They changed the rationale. So i simply think row was wrong at the start and the fifty years almost fifty years intervening has improved the analysis. Thanks so much for that leah. Theresa says that in fact the basis of the liberty right in rhode did not have long roots and suggests that in the casey decision in nineteen. Ninety-two the court. It's rationale to emphasize more women's equality than personal privacy and drawing on arguments made by a justice ginsburg and others. The court said that restrictions on abortion impose limits on women's ability to choose their destinies that are not imposed on them. Tell us what you think of criticisms of the liberty argument and also whether you believe the equality. Argument is more persuasive. So i just think that the criticisms of the liberty argument in row are overbroad or necessarily depend on a conclusion about when life begins so on the overbroad -ness of the criticism. You know you can make the same argument about the text and history of the constitution not supporting a particular right. Not only about row. But also about the decisions theresa to griswald in connecticut. Nineteen sixty is nine hundred seventy s era decisions. And so if you agree that you know. The constitution can't prohibit states from doing anything that isn't explicitly mentioned in the constitution. Then that's not really unique to row. That's going to call into question this entire body of law that predates griswold and is instead but also includes them and it also includes no more modern cases lawrence versus texas or bergeford versus hodges. The decision saying states can't criminalize same sex sexual relationships and can't deny marriage licenses to same sex couples all of those decisions. If we're requiring some firm historical evidence that right has necessarily been protected for all time are going to get called into question and as to whether the arguments or the changes in the courts personnel cast out on the decision. You know there. I would just say that. Of course you know. Brown versus board of education and the decision that was holding segregation in public education. Unconstitutional was also famously. Argued and went through. You know multiple rounds. And so. I don't know that that's a particularly uncommon feature a supreme court decision making at least during that era. The quality argument for abortion rights was as you noted famously advanced by justice. Ruth bader ginsburg In parts to respond to the perceived shortcomings of the liberty argument. The equality argument rests on the idea that in order to participate equally in government society the economy and to realize their full potential women need to have the ability to determine when and whether they will carry a pregnancy to term You know it is just the case that the sad reality in the united states is that maternity leave and maternity care is not particularly great in part for that reason you know women who are deciding whether or not to carry a pregnancy to term are not just making a decision about whether to have a child but are making a decision about how they will care for the child for perpetuity And also whether to assume the social roles that we as a society have assigned to Primarily women and mothers And it's in part to give women control over their own personal autonomy. Wellbeing medical care Economic livelihood that justice ruth bader ginsburg said in order for them to participate in society. They need to have the ability to control weather and when they become Pregnant and you know one statistic that people often note in this particular debate. Is that the majority of women who have abortions are themselves mothers. So it's not like these are women who don't value you know. Children the sanctity of life. It's just whatever their circumstances are they do not find themselves able to have another child and bring them into the world. Thank you so much for that. Theresa leah has well-articulated the equality argument advanced by justice repeater ginsburg and noted in the courts. Casey versus planned parenthood decision in a piece for book called what roe v. Wade should have said you. Are you the equality. Argument cuts the other way. You quote elizabeth katie. Stanton a writing that when we consider women are treated as property. It's degrading to women. We should treat our children as property to be disposed of as we see fit. And you say by their rejection of abortion. These women Advocates demanded something more meaningful and more radical equality full woman not as chemically altered. Its men tell us more about why you think the equality argument cuts in the opposite direction. So the language of the plurality which did not include justice ginsburg. She had separate opinion. But on this issue generally in her scholarship before she came to the core. What is very clearly grounded in that way. But the language of The plurality opinion that is controlling opinion in case he says for two decades of economic and social developments people have organiz their intimate relationships and made choices that define their views of themselves in their place in society in reliance on the availability of abortion in the event that contraception should fail the ability of women to participate fully to the economic and social life of the nation has been facilitated by their ability to control their reproductive lives but the simple fact is that they provided no empirical evidence to make that trutv and when we go back and we look at the actual historical evidence and the evidence that has been developed since Roe v wade and planned parenthood versus casey. There is not even a strong correlation between women's advancement in educational opportunities and professional opportunities And what we would say. The culture generally and abortion at the very time that abortion is decreasing women are participating more and more in higher education. Now it's more likely that a woman's going to be a college graduate that a man and yet we've seen that happen during the decline of abortion so the supreme court made this empirical statement with with no evidence and certainly with none provided or cited to in the opinion itself. And when you go back and you really look at the history it there is a there is not a correspondence more or less causation. The other problem is that what we've done is we've accepted. I would even say a stunted male reproductive model for economic lives people are supposed to be constant workers. And you hear this from men and women that that time when biologically say from age. Eighteen to thirty when moore most likely to conceive easily. Imbera child is that time when you're supposed to be establishing yourself it's when you are supposed to be beginning your jobs in your careers and your work life and your economic life and there's no room for bearing children. How often do you hear women. Say i would love to have a child but i've gotta get established. I need a big partner at the firm. I need to get through med school. Or i need to. I need to be a front line supervisor. And so what we see is that this falls correlation that they ground the abortion. Right in has actually retarded the ability of women to say as leah. I said no. I am a full person and workplace. You need to accommodate that reality. We do need the opportunity to bear children to nurture them. And that's been lost by this idea that we should have a sterile worker force. That doesn't have to be concerned. We've certainly seen that with the pandemic that when family responsibilities interfere there are a lot of employers that refused to adapt and part of it is because of what they said in planned. Parenthood versus. casey pregnancy is considered voluntary elective. And certainly it. It is voluntary or should be but having said that it is an important part of our community and the future of our community and we need to value it and we need to accommodate it. We have a pregnancy discrimination act and just two years ago the new york times do the huge expose on how major law firms and major corporations are discriminating against women. When they're pregnant women are being denied. Promotions are being denied the opportunity to pursue their career while they pursue creation of their family. This hasn't helped women it's retarded. Our progress let us get at best a quarter of a loaf when we're entitled as gifted human beings to participate fully and that means to have a life beyond work. Thank you so much for that. We've talked about liberty and equality. Let us now turn to natural law in planned. Parenthood casey justice anthony kennedy said that at the heart of liberty is the right to determine one's section of meaning of the universe in the mystery of human life. Some call that argument derived from natural law underlying principles of moral philosophy rather than the text in history of the constitution and indeed the kansas supreme court in two thousand nineteen explicitly natural law to declare abortion to be among kenyans fundamental rights and invoked. John locks declaration that every man has a property in his own person As a political natural right as a basis for right to choose abortion leah. Tell us what natural law reasoning is. And why some have identified the argument casey about autonomy as a natural law and natural rights based argument so natural laws. The idea that you can come up with some principles that should govern kind of society and individuals relationship to the government based on something intrinsic to human nature that is just based on who people are how they operate. You can deduce some principles under which government society should be organized. And so some of the language in casey that you were alluding to seemed to call to some people's minds the idea that justice kennedy. Or or the controlling plurality Believe that there are certain principles intrinsic to human nature that we just can't depart from the idea that there is a destiny of an individual or at that falls to each individual to define for themselves or determine for themselves mystery of human life. So the idea that there is just this core of human autonomy that is just how people organized their lives seem to be an alternative conception about what the protected liberty of the due process clause. Was that the planned. Parenthood versus casey plurality protected. I did want to say one thing about the pandemic in particular which is to my mind. The pandemic has revealed that even when we all collectively find ourselves in extremely difficult circumstances you working from home. Maybe having to do childcare and school care on top of that still employers haven't really found a way to make it work for women men or anyone else you know what we have seen is just a massive exodus almost extinction event for women in the workplace so the idea that if we are all collectively banded together and no longer in a situation where we can control a reproductive lies that employers will somehow accommodate this and allow for women to carry pregnancies to term if and when they would like and that there would be an adequate economic safety net health. Care safety net for families. Is i think a little bit less plausible than thinking that women's ability to control the reproductive lives is important for their ability to participate equally in all facets of society theresa. You have argued that natural law arguments might protect the rights of the unborn and that unborn. Children may have constitutional rights of derived from god or nature rather than the constitution explicitly. And this argument as you know if accepted would put the constitutionality of laws. That legalized abortion into question. Tell us about why you believe that natural law may favor the right to the fetus rather than the rights of woman well in part because the mills in principle of liberty the you mentioned the kansas supreme court impart part relies on this idea that the most fundamental freedoms to control my own body is limited even by john stewart mills harm principle that and the saying is that you're right to swing your fist ins where my nose begins and so in this unlike the the equality argument Where the unborn is a part of that argument but my focus really is on women being accepted as whole women with a natural reproductive life into the culture and into the public square and into the the economic the marketplace. In this instance. What we're talking about is that there is a second being that is involved. It's no longer even arguable. Whether or not that. Which is why within the woman wants. A pregnancy begins is a human being. We have the on ball companion rounds versus a planned. Parenthood out of the eight circuit that stiffly said that planned parenthood provided no evidence to the contrary every abortion end the life of a separate unique human being as state law. That was at issue in that case requires to be told to a woman so then the question is does a woman's liberty to be free of the pregnancy which is what the court has always called it. It's a right to terminate the pregnancy. It's not a right to kill. It's a right to be free of an unwanted pregnancy. Does that trump the ride of the child who in the vast majority of cases. She has voluntarily participated in the activity that created. That child does that right. Get trump by the woman's interest in terminating the pregnancy and and i think that we would not accept that argument in any other context. We don't allow people to take the lives of others when we need their organs. We don't we don't even require a parent to compel Their child today nate their organs for sibling etc. And so this idea that because the woman again in the vast majority of cases even it's time versus wade had voluntarily participated in the activity that brought that child into being because she no longer wants to be pregnant that she can terminate the life of that child and not allow it to continue to develop is deeply problematic in. That's why for so many of us. The opinion is fundamentally unjust. It is something that the only other context where we require another human being to give up their life is in the military context and even there. We have an all volunteer army now and so the idea that the woman has to have this control. We've talked about liberty. I don't think it's meaningful there. We've talked about But in this instance if we look especially in states like new york and virginia where it's post viability at that point the woman could have labor induced prematurely. The child could be born. And there's in every state in the union. There is a safe haven law a law. That says you can leave the baby at the hospital with no legal repercussions and so this right to kill that. The right to abortion is has has been and is becoming clearer and clearer that. That's what the right his exists is is not something that you can build an ordered liberty on lia role in casey held that there's a fundamental right to abortion rooted in the due process clause that restrictions on abortion before fetal viability which takes place around twenty four weeks are presumptively unconstitutional and the case decisions said that any of those restrictions have to be evaluated according to the so-called undue burden test. Now that the courts about to reconsider all that. Tell us what a court that felt. That precedent had some weight. And didn't want to overturn roe explicitly might do without undue burden test could apply it in ways that allowed for pre viability abortions. Which is the central question in this case and would there be any limits on the kind of pre by ability abortions that court that maintain the undue burden test might might sustained so the doctrine of starry decisive. The idea that courts should respect prior decisions even when they think they're incorrectly decided is of course deeply associated and interconnected with the abortion rights and planned parenthood versus casey the nineteen ninety-two decision. We've been talking about the court declined. An invitation to overrule roe versus wade invoking. The doctrine of starry decisiveness just last term in june medical services versus russo. Once again the justice whose vote was pivotal to the outcome chief justice roberts invoked the doctrine of decisiveness to declined to overrule the court's previous decision home and south versus heller stat which had invalidated the admitting privileges requirement arm that was also at issue in june medical so there is a tradition of course invoking respect for precedent and story psychosis in abortion cases as grounds not to revisit prior rulings traditionally. Starry decisive has turned on a few factors whether subsequent legal developments have called the opinion into question whether the case is an aberration. Or you know kind of a sore thumb sticking out in the court stirs prudence whether subsequent facts have called the decision into question whether there are reliance interests on the decision. And you know those are have been some of the key factors more recently. Some justice says he focused on other factors or at least refrain them such as whether the decision is agreed asli wrong or demonstrably erroneous. That has how wrong decision as affects weather to overrule it. They've also focused on the quality of reasoning in the decision. Basically asking how good or how bad or very bad. You know the reasoning in that prior case was it's my view that respect for precedent would require adhering to the casey standard the idea that before viability states can't ban abortion and that restrictions that fall short of an outright ban should be subject to the undue burden test as we've been talking about you know the doctrine of substantive due process is not unique to row or casey is in fact present in many of the courts more recent decisions as well as decisions predating row also no subsequent facts have eroded the idea that you know the decision whether to bear a child is protected. Liberty or an important component in controlling one's own life and mississippi is an arguing that the ban on pregnancy. Sorry that the ban on abortion after fifteen weeks of pregnancy does prohibit abortions before ability. So there's no argument to that. Subsequent facts have somehow moved the period of ability earlier to a point where mississippi's ban doesn't run a foul of that so to my mind. All of the kind of traditional story decisive factors would council in favor of upholding Kc and row. That doesn't mean that. I think that's what the court is going to do. But i do think that you know a traditional or healthy regard for precedent will lead to that result. Theresa help us understand what the court might do if the justices decide not to overturn roe entirely to say there is some way to president but that under an undue burden standard. The interests of the theater should be balanced against those of the woman. Would that lead to the upholding of a ban on abortion at fifteen weeks and help us understand the constitutional arguments that the court might apply under this approach. Well factually in the united states. The vast majority of abortions are completed prior to twelve weeks and certainly prior to fifteen weeks so numerically. We're talking about a small number of abortions and so the impact at one level if the court simply upholds the mississippi band and in some way supports it. Perhaps with the fetal pain argument that mississippi has presented at the appellate level and that we anticipate Include in their arguments to the supreme court that if the court takes that position it's actually impact given the sort of health exception that the dove bolton case requires in a post viability setting really. Ill have very little impact on the actual practice of abortion in this country The vast majority of abortion providers themselves do not do abortion. Certainly. after twenty weeks. they don't and and many of them don't do them after twelve or fourteen weeks. So as far as actual impact on the practice there would be very little impact on that and it could be argued that a woman can't assume duty in a pregnancy that she did not willingly Create or participate in the creation of by virtue of delay. And that is at least there. Those who are making that argument that if you have. And this is the rule in most european countries right that you have this protected period of time in which a woman can choose to reject pregnancy. But that her delay for in this instance almost four months would indicate that she has acquiesced or consented to the continuation of the pregnancy. At least tell the child can be born alive and then again under the safe haven law simply be left at the hospital if she doesn't want undertake the the work of nurturing and parenting that shop so that would be one way to do it is simply to say we are so far out of step with the rest of the western world at least on this issue that it makes no sense and mississippi argues that the methods of abortion become less and less safe for women and we hear that from the abortion industry all the time that the longer we delay the more dangerous the abortion becomes we certainly hear that in the context of rushing minors through an abortion without their parental involvement And so that's conceded that the abortion becomes more and more dangerous to the woman it's also a pretty barbaric the methods after you hit a certain point and jeff. I would correct you on a couple of things in your description of casey. The court backs off the fundamental right analysis and in fact says that the abortion is a liberty interest which can be balanced against other interests and one could argue that the interest of the unborn child begins to mature in the same way that we have other cases. Where perhaps you don't have full constitutional person who think about corporations but you have some constitutional rights in some context and so as the child begins to mature within the womb and it becomes to it comes to acquire greater and greater capacities within the that those rights begin to accumulate including the right to be protected against the intentional causation of it staff. The other thing is as justice o'connor had noted in a number of previous opinions that if you tie it to viability the problem with that is that it's something that is decreasing and decreasing. Yes the court generally said that at twenty four weeks we can be confident that the vast majority of pregnancies are viable at the or. The child is viable at that point but now actually the medical literature indicates it's closer to twenty two weeks and we know that there have actually been in some instances children who have survived Premature delivery at twenty one weeks and so tying it to that sort of marker creates an instability finally to me and it's part of the analysis starry devices is has. The opinion proved unworkable. And i would argue that. Unlike even oprah fell where you don't see legislatures across the country trying to to change it and trying to legislate in such a way to narrow it you've got fairly broad acceptance of obergefell and above the the cases related to lawrence v taxes. You don't and still. I don't think ever will have that sort of acceptance of this. This is a question that has to be to our collective judgment as people and starry decisive even under the courts own doctrine does not apply with the same strength. An instance where it is a decision that has historically been a legislative decision. So in this instance the reversal of bro. Yes we'll lead some states to prohibit abortion largely in its territory but other states like new york and we had this before row. Hawaii had legalized abortion. new york. Had legalized abortion before row. Led the people make this decision. Thanks very much for that. We've talked about the main constitutional arguments for and against roe. V wade including liberty equality. Natural law and precedent. It's now time for closing arguments in this eliminating discussion. Leave the first one is to you. y and on what grounds do you believe the constitution protects a right to choose abortion before fetal viability. And why do you think that the court should uphold the corporate texans of roe v. Wade i think the most persuasive argument for protecting the rights to abortion is the one that justice. Ginsburg articulated the equality. The idea that it is essential to women's ability to participate equally in modern society. They be able to control when and whether they have a child Some of the amicus briefs filed in the most recent abortion litigation. I think powerfully spell out how in today's society you know we have successful lawyers. Doctors law students all of whom have been able to take on the lives that they lead on because they were able to decide under what circumstances they were going to have a family And it is that right that i think the court should protect although as i have. Alluded to I think the more likely scenario is That the court will be cutting away at the right in the way. That theresa was alluding to daily suggesting that states can prohibit abortions Before thanks for that theresa the last word to you. Please tell listeners why you think. The constitution does not protect a right to choose abortion before fetal viability. And why and on what grounds you'd think the court should overturn the core protections wayne. Well the simple fact is. There's no empirical evidence that abortion has directly facilitated women's ability to participate in society in one thousand nine hundred eighty five. We had our first female governor in this country. That was almost fifty years before row in thirty two. We had our first female senator in thirty three. We had our first female cabinet member. Which i would note was secretary of labor. We had our first super We had our first court of appeals. Judge we had our first woman nominee and sixty four to be president We had the first woman to own a seat in the stock exchange and the first woman to be director of the new york stock exchange all of that predates the simple fact is that women's acceptance and full participation society is dependent upon cultural norms allowing women the opportunity to pursue advanced educations and to use their gifts and talents. And the presence of rowe has not facilitated. It and i would argue at his impact retarded and retarded the accommodation of the unique aspects of our life more importantly it is a question of continuing turmoil and for those of us who believe the science an argument that we keep hearing from on lots of other topics who believe the science that when that sperm and egg come together it creates a unique separate human being and that at its most fundamental level. Government's job is to protect human beings from axa private. Violence rovers versus white can't stand. It is an injustice just as the injustice of slavery that we did not correct until eighteen. Sixty five with a bloody civil war and this is an injustice that our grandchildren will look back and they will find it. Unbelievable that we're allowing babies to be killed that could be born and could live healthy. Happy productive lives. Thank you so much leeann. And theresa stanton it for a vigorous deep and civil discussion of the constitutional arguments for and against upholding. Ravi wave belittling theresa. Stanton it thank you so much for joining. Thanks for having us a great conversation. Thank you today. Show engineered by. David stotts produced by jackie. Mcdermott research was provided. By mac. taylor anna salvatori and lana caloric the homework of the week. Please check out live at the national constitution center. It's companion podcast. A we the people. It's the live audio feed of all the wonderful account home programs that were running every week. They've been so rich recently. They're spreading so much light on topics from the constitution and american literature to the founders library. All of us learn so much every week from them. And i hope that you will too so please check it out. And of course please rate review and subscribe to we the people on apple podcasts and recommend the show friends colleagues. 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