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Creative Lawyering After Roe

-- By PeterCavanaugh - 15 Apr 2010

Ginsburg on Roe v. Wade

Shortly before being nominated to the Supreme Court, Ruth Bader Ginsburg, then a Judge on the D.C. Circuit, wrote that while Roe may have appeared to be a strong victory for liberal pro-choice advocates, the ruling may have ultimately harmed the long term liberal goals of achieving public acceptance of the right to an abortion and stability in the courts.

Roe, Ginsburg criticized, “invited no dialogue with legislators,” and “halted a political process that was moving in a reform direction and thereby ... prolonged and deferred stable settlement of the issue.” To Ginsburg, Roe’s holding actually represented a failure for pro-choice advocates – an abortion right was secured but remained unstable. Unfortunately for these advocates, Ginsburg’s criticisms presaged an unwinding of abortion rights in the decades following Roe. However, this unwinding did not result from direct challenges to Roe’s holding but rather from a gradual erosion of Roe’s foundations stemming from incremental legislation slowly reducing abortion rights and defense of such legislation in the courts.

Necessity: The Mother of Creative Legal Thinking

Facing the ramifications of Roe’s ruling, pro-life advocates likely realized the futility of attempting to directly overrule Roe. The composition of the Supreme Court had not changed in a way sufficient to suggest that a different ruling was likely to be issued, and additionally these advocates may have feared that an abrupt overruling of Roe could lead to a pro-choice backlash, similar in strength to the wave of pro-life revulsion following the holding in Roe. 19 years after Roe had been decided however, Casey v. Planned Parenthood of Pennsylvania left cracks in the framework created by Roe.

Casey v. Planned Parenthood of Pennsylvania: The Foundations

While claiming to uphold Roe, Casey significantly weakened the protections of abortion rights. First, the overruled the trimester structure of Roe. Second, the court determined that government regulations of abortion do not need to meet strict scrutiny, but instead should be allowed unless imposing an undue burden on access to abortion. The only aspect of Roe clearly maintained was that states were held to not have a compelling interest in protecting potential life before fetal viability.

Moving the Ball

Ayotte v. Planned Parenthood of Northern New England

In the years following Casey, states passed increasingly restrictive regulations on abortion. In Ayotte the Court rejected facial challenges to abortion statutes when the law could be tailored in such a way that the affected party could remain unaffected. The court argued that it was only bringing abortion cases in line with other constitutional claims. The significant ramifications of this decision would be revealed in Carhart v. Gonzalez, however.

Carhart v. Gonzales

In Carhart, the Supreme Court made three major decisions that the pro-life movement has been able to use to continue pushing the line on acceptable state regulation. First, the decision signaled a reversal in how the court would evaluate legislative findings of scientific evidence when there is no medical consensus on the issue, deferring to the the legislature. Second, the Court took notice of additional state interests beyond the mother's health and protection of potential life when deciding if the state could legitimately regulate abortion. These include the protection of the aesthetics of the process of birth, preventing post-abortion syndrome, and a general respect for life. Third, the Court affirmed the principle in Ayotte that it would not allow a party to bring a facial challenge when the challenged aspect could not be shown to affect her.

In Carhart, the Supreme Court made three major decisions that pro-life advocates have been able to use to continue pushing the line on acceptable state regulation. First, the decision signaled a reversal in how the court would evaluate legislative findings of scientific evidence when there is no medical consensus on the issue, deferring to the legislature. Second, the Court took notice of additional state interests beyond the mother's health and protection of potential life when deciding if the state could legitimately regulate abortion. These include the protection of the aesthetics of the process of birth, preventing post-abortion syndrome, and a general respect for life. Third, the Court affirmed the principle in Ayotte that it would not allow a party to bring a facial challenge when the challenged aspect could not be shown to affect her.

The Outer Reaches

The most recent salvo from the pro-life camp comes from Nebraska. The Governor of Nebraska just signed two new laws: one requiring screening of all women seeking abortions for certain psychological and physical risk factors and the other banning most abortions after 20 weeks. The constitutionality of both of these laws is questionable. The first likely can be upheld under the undue burden standard from Casey because it does not place any burden directly on the woman's ability to get an abortion; its enforcement is only against the doctor. Though it may be invalid for vagueness or over-breadth, it would not have as dramatic effect as the fetal pain law. The constitutionality of the second is far more suspect as upholding it would require the court to strike down the last vestige of Roe, the right to an abortion before fetal viability. However, the jurisprudence since Casey has developed in such a way that this may now be a possibility.

Correct Strategy?

If a clever lawyer were hired by a national pro-life group the day after Casey was decided and asked to craft a jurisprudential plan for rolling back abortion rights, would such a lawyer have proceeded as the real-world pro-life advocates did in the line of cases after Casey?

The pro-life strategy to unwind abortion rights by incrementally presenting legislation that chipped away at the right while proceeding to defend such legislation in court is creative lawyering insofar as it demonstrates an ability to look several cycles ahead. The new Nebraska laws are the next logical step for pro-life advocates to take at this stage, but it is impossible to know if the plan was to build, through test cases, the necessary jurisprudence to support it. Objectively, pro-life advocates have managed, since Casey, to register successive small legislative and judicial victories limiting the freedom for women to choose to have abortions while expanding the ability of the government to restrict abortions. Additionally, they have succeeded in executing these aims with minimal backlash while creating new narratives of government interest purportedly based on biology and psychology.

Since Casey, pro-life advocates have found significant success though a gradualist approach which has slowly but steadily moved the ball forward without generating a noticeable backlash. In this way, pro-life advocates have succeeded where Ginsburg warned pro-choice advocates that they may have failed. Unlike the pro-choice movement’s sudden victory in Roe, the pro-life movement has been successful through a protracted but methodical march.

Not sure If I neutered this beyond recognition, but I wanted to present a thesis we could prove through the information you'd accumulated. Let me know how you feel about it.

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