Roe v. Wade & 'workability' argument: fourth best reason for annulment

Sign at the March for Life rally in Washington, D.C. in 2011. (Jason Reed / Reuters)
The argument of “workability” enjoys 15 minutes of fame.

More than two hundred Congressmen, with the exception of two Republicans, have signed a letter to the Supreme Court on June Medical Services against Gee. The case is about a Louisiana law that requires abortion doctors to get approval in a nearby hospital. This arrangement is similar to that from Texas, which the Court of Justice suppressed in 2016. The Court could use a scalpel to address the situation or take the opportunity to rethink its abortion case law.


Much of the work consists of the boring legal arguments you would probably expect. It encourages the court to find that plaintiffs lack reputation or that they do not recognize the Louisiana law as “distinguishable” from the Texas disability law. But then it suggests that the court consider revising or overriding the rulings, most importantly Roe v. Wade and Planned Parenthood v. Casey, that treat abortion as a constitutional right. Why? The answer is a little unexpected: the right to abortion is simply not “workable”, as can be seen from the fact that the courts do not create a stable and logical system to determine which abortion restrictions are constitutional and which are not.

It is not surprising that legal commentators were shared in the brief. Mark Joseph Stern of Slate calls the argument a “trick” and a “lie” that conservative judges, especially Brett Kavanaugh, could give an excuse to depart from judicial precedents that have actually worked flawlessly for nearly half a century. NR’s own Ramesh Ponnuru, who writes at Bloomberg View, says the typesetting is a strong argument that may prove crucial in a future case, rather than in June Medical Services itself.

I have a different view. It is difficult to establish useful standards in this area, but that does not really distinguish abortion from the countless other areas in which the Court operates, and I am not sure what role it will or should play in Roes death. If there really was a constitutional right to have an abortion, or if the core of Roe would be worthy of precedent for other reasons, such as maintaining legal stability, it would make sense to develop and improve the rules rather than the judicial ones End enforcement of abortion law itself. (The central guideline since 1992 is that states cannot impose an “undue burden” on women seeking abortion – a vague standard that leaves a lot of room for refinement.) Who wants to see the end of Roe , this shouldn’t do too many eggs in the “workability” basket, and there are many arguments worth emphasizing more.

To put it bluntly, there is a feasibility problem, at least in relation to the Court’s previous approach to the abortion issue. Here is the brief description of the GOP that describes the various ping-pong movements of the yard over the years:

The court passed regulations in Akron and Thornburgh, which were later approved in Casey. The court identified two governmental interests in abortion regulations in Roe, but recognized more in Gonzales. In Stenberg against Carhart, which was later approved in Gonzales, the limits for abortion of partial births were lifted. In Gonzales he refused facial injuries, in Hellerstedt there was a spontaneous revival. The Court has withdrawn from Roe in at least four cases – Harris, Webster v. Reproductive Health Services, Casey, and Gonzales – to recalibrate the review standard and give states greater respect for compliance with health and safety regulations and partial bans.

These flip-flops, as well as the contradictory abortion decisions that are routinely made by the lower court of the Supreme Court, show how difficult it is to separate permissible from non-permissible boundaries – especially when different lawyers have different ideological obligations regarding the law , and when many states are ready to get creative, they limit the right in every possible way. However, this problem is linked to a certain extent to rights enshrined in the constitution, statute or precedent, and we rarely see it as a reason to think about whether courts should enforce such rights at all.

There is no argument that it is more difficult for courts to manage abortion rights than weapons law, for example. This is another area where the Court’s standards are still young and evolving. The judges disagree as to whether the law should exist at all. And while the Court was thinking about how states can limit marginal abortion, it was absolutely certain on the key issue: whether a woman has the right to abort her child in the first months of pregnancy, when? The vast majority of abortions take place.

While it is indeed difficult to establish workable rules for abortion regulations, I would call that the fourth best reason to strike in the heart of Roe itself. My top 3 have to do with whether the decision was right from the start and, if not, with other concerns, whether it was a precedent that the courts should respect anyway.

First, there is really nothing in the Constitution that prevents states from regulating abortion at their own discretion. Therefore, it is no problem for the federal courts to clarify permanently, as they tried in Roe. Second, this decision to override voters’ political preferences has been extremely momentous and horrific for those of us who oppose abortion, since Roe has allowed millions of helpless babies to die in jurisdictions that would have severely restricted practice if they could have done this. Third, unlike many other non-originalist precedents of the past decades, Roe has not established itself as a widely accepted and politically unremarkable part of our legal landscape and triggered violent protests almost 50 years after his decision. States and even judges at the lower courts continue to push the limits of abortion laws.

You may not agree with my ranking. I stole three of the four elements from the list of criteria by which the late judge Antonin Scalia overruled the precedents. How wrong it was. , , 2. How well received was it? , , , 3. Above all, does it allow me to act as a lawyer or does it make me a legislator? “(Emphasis from me.) In explaining the third part, Scalia explicitly referred to the“ excessive burden ”standard for abortion laws.

However we order these different tests, Roe fails them all. Taken together, they are an incredibly powerful case of overcoming a bad precedent that took too long, claimed too many lives, deprived states of too much power, and sowed too much discord by denying abortion opponents the fair chance of one Making a difference in the legislative process. Above all, the court should end it soon – for whatever reason it finds the most convincing.