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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, then Judge Ginsburg wrote that Roe, though successful, may have harmed the long term goals of achieving public acceptance of the right to an abortion and stability in the courts. Roe, Ginsburg wrote, “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.” If Ginsburg is correct on this point, Roe is actually a failure of pro-choice adovacates to secure their victory for the future. If this is the case, are post-_Casey_ actions by pro-life groups an attempt to avoid a similar Pyrrhic victory?

Necessity: The Mother of Creative Legal Thinking

Following the decision in Casey, pro-life advocates likely realized the futility of attempting to directly overrule Roe given the composition of the Supreme Court. Additionally, they may have realized that an abrupt overruling of Roe would have led to the same type of backlash the was born from Roe. In the face of Casey, pro-life advocates sought to advance their objectives through the several cracks Casey put in Roe.

Casey v. Planned Parenthood of Pennsylvania: The Foundations

While claiming to uphold Roe, Casey significantly weakened it 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 do 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, however these were In Ayotte the Court 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 inline with other constitutional claims, however, it was a significant blow, the effects of which were felt quickly in Carhart v. Gonzalez.

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 protecting 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 one were hired by a national pro-life group the day after Casey was decided and asked to craft a legal plan for rolling back abortion rights, would the preceding path be the one to follow? It is creative lawyering insofar as it showed an ability to look several cycles ahead. Surely the new Nebraska laws are a logical step for a 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, the register successive small legislative and judicial victories limiting the freedom to choose in abortion while expanding the ability of the government to restrict abortions. Additionally, they have succeed in doing this with minimal backlash while creating new narratives of government interest purportedly based on biology and psychology.

Regardless of how one feels about abortion rights, it is clear than since Casey, pro-life advocates have found significant success though a gradualist approach which has slowly, though surely moved the ball forward without generating a noticeable backlash. This, according to Ginsburg, is where the advocates behind Roe fell short and is a significant reason the issue continues to rage today as it does.

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