The Repeal of Roe v. Wade: A Judge’s Perspective

Image design by Vinicius Tavares for DWF 1
Image design by Vinicius Tavares for DWF 1

Was Roe v. Wade Correctly Decided? Should It Have Been Overruled?

By Carl J. Schuman – Superior Court Judge, Connecticut; Former Assistant United States Attorney

What do the late Justice Ruth Bader Ginsburg and commentators for the Washington Post, New York Times, and Los Angeles Times have in common with regard to their views on Roe v. Wade? The answer, perhaps surprisingly, is that they all thought Roe was wrongly decided, or at least poorly reasoned. In a 1992 lecture, Justice Ginsburg expressed concerns that Roe went too far, that the United States Supreme Court should have merely declared unconstitutional the Texas law prohibiting all abortions except those necessitated by the mother’s health, and that the court should not have “[fashioned] a regime blanketing the subject, a set of rules that displaced virtually every state law then in force.” The Washington Post recently ran a column entitled “Roe v. Wade is a Bad Decision That Ought to Stand.” A New York Times article stated that “Roe arrogated to the least democratic branch of government the power to settle a question that would have been better decided by Congress or state legislatures.”

In Dobbs v. Jackson Women’s Health Organization, a five-member majority of the court decided two issues in the context of Mississippi’s ban on abortions after 15 weeks: 1) that Roe was wrongly decided, and 2) that it should overrule Roe. Let’s take a look at each issue.

Was Roe Correctly Decided?

The two issues involved are separate. A wrongly decided decision does not have to be overruled. Moreover, gaining an understanding of the problems with the Roe decision itself (the first issue) is important for several reasons, even if you disagree with the notion that Roe should be overruled (the second issue). To begin with, familiarity with the criticisms of the Roe decision will help you understand the fervor of the opposition to it. That understanding, in turn, may promote civility in debate. Further, a recognition that Roe may have stemmed from excessive judicial activism by the liberal majority of the 1970s Supreme Court may help you recognize improper activism by the current conservative majority or by future courts.

To understand the criticism of Roe, we need to first examine what the Roe Court actually said. Roe was a 7-2 decision authored by Justice Harry Blackmun in 1973. Speaking for the court, Justice Blackmun first found that, although there is no express mention of a right to privacy in the Constitution, a right to privacy could be grounded in the 14th Amendment’s concept of personal liberty and restrictions on state activity (“nor shall any State deprive any person of life, liberty or property, without due process of law”). The court next decided that a women’s decision to elect an abortion falls within the right to privacy because of the medical and psychological consequences to a woman of bearing a child. The court observed, however, that the right to privacy is not absolute and that at some point the state’s interest in the protection of health, medical standards, and prenatal life becomes dominant.

Based on this analysis, the court handed down the following ruling: “(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician. (b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. (c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”

Where Dobbs Diverges

The Dobbs majority opinion, authored by Justice Samuel Alito, called Roe “egregiously wrong and on a collision course with the Constitution from the day it was decided.” The majority observed that the Constitution does not expressly mention a right to abortion or even a right to privacy and that the right to an abortion is not sufficiently rooted in the Nation’s history and tradition so as to support a right that the Constitution does not expressly enumerate. The court added: “[w]ithout any grounding in the constitutional text, history, or precedent, Roe imposed on the entire country a detailed set of rules for pregnancy divided into trimesters much like those that one might expect to find in a statute or regulation.”

Whether or not you agree with all of Justice Alito’s criticism of Roe, there can be no dispute that there is no explicit mention in the Constitution of abortion or even a right to privacy. For this reason, the claim to a constitutional right to abortion is weaker than that in cases involving specifically enumerated rights, such as the right to freedom of speech and religion, the right to bear arms, and the right to counsel in criminal cases. Further, the Dobbs majority’s criticism that the Roe Court created a set of rules as if it were a legislature echoes the much earlier concern of Justice Ginsburg and other liberal commentators.

Supporters of abortion rights may not like the conclusion that Roe was wrongly decided, but legal decisions should be rendered—and evaluated—on the merits and the law, regardless of one’s personal policy preference. This principle is important, even for supporters of abortion. For those same supporters may not like what happens if a conservative court is free to interpret the Constitution in a way that is not presented by the parties or that is not true to the Constitution’s language and history. The best example is the 2010 case of Citizens United v. Federal Election Commission. There, the court reached out to decide a question not originally raised in the case: whether the First Amendment barred a government restriction on the political campaign speech of corporations. The 5-4 conservative majority held that, because of the First Amendment, the government may not suppress political speech on the basis of the speaker’s corporate identity. This time it was the liberal dissenters, led by Justice John Paul Stevens, who criticized the result as unfaithful to the language and history of the First Amendment. The Constitution, after all, does not mention the word “corporation” and, as Justice Stevens stated, “when [the Framers] constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind.” So this sort of judicial activism can be a dual-edged sword.

Should Roe Have Been Overruled?

Now let’s look at the second issue: whether the court should have overruled Roe. Under the doctrine of stare decisis (or, literally, to stand by what is decided), courts should ordinarily adhere to a prior decision or precedent, even if the court questions its legal correctness. This doctrine is critical to the predictability and stability of the law. As the Dobbs Court noted, Stare decisis “reduces incentives for challenging settled precedents, saving parties and courts the expense of endless relitigation” and it “fosters ‘evenhanded’ decision-making by requiring that like cases be decided in a like manner.”

A court should examine a number of factors before it overrules a prior decision: the nature of the previous court’s error, the quality of the reasoning, the workability of the rule it imposes, the effect on other areas of the law, and the extent to which the public has relied on the prior rule. The Dobbs majority concluded that all five stare decisis factors weighed in favor of overruling Roe and departing from stare decisis. Perhaps the most important of the five factors was reliance. The majority found that reliance interests were not implicated because “getting an abortion is generally ‘unplanned activity,’ and ‘reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions.'” In other words, according to the majority, couples generally do not rely on the right to an abortion when engaging in reproductive sexual activity. In contrast, the classic reliance concerns arise in criminal cases when the government has tried thousands of defendants based on an old rule – say, that a criminal jury can render a guilty verdict with a nonunanimous majority vote – and the court must decide whether to change the rule and jeopardize all of the resulting convictions.

The majority cited numerous decisions that the court has overruled. The most famous is, of course, the separate but equal holding of Plessy v. Ferguson, which it overruled in Brown v. Board of Education.

The Dissenters

The dissenting Justices—Breyer, Sotomayor, and Kagan—took strong issue with the majority’s departure from the stare decisis rule. They observed that cases such as Brown v. Board of Education had emerged from “major legal or factual changes undermining a decision’s original basis.” Thus, the Brown Court reasoned that “[w]hatever might have been thought in Plessy’s time … both experience and ‘modern authority’ showed the ‘detrimental effect[s]’ of state-sanctioned segregation: It ‘affect[ed] [children’s] hearts and minds in a way unlikely ever to be undone.'” In contrast, the dissenters found no subsequent factual developments that have undermined Roe. They stated: “Women continue to experience unplanned pregnancies and unexpected developments in pregnancies. Pregnancies continue to have enormous physical, social, and economic consequences.”

Further, the dissenters found a critical difference between decisions like Brown and the current case. Brown and the other decisions “protected individual rights with a strong basis in the Constitution’s most fundamental commitments; they did not, as the majority does here, take away a right that individuals have held, and relied on, for 50 years.” Finally, the dissenters found that there was in fact reliance on the Roe decision in that “‘[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives'” and “all women now of childbearing age have grown up expecting that they would be able to avail themselves of Roe’s … protections.”

Ultimately, the dissenters concluded that the court had overruled Roe solely because “the composition of [the] court has changed.” This concern, of course, is a valid one because the principle of stare decisis guarantees the continuity of decisions absent specific legal reasons to change course. Stare decisis promotes the rule of law, rather than that of men and women.

The dissenters present excellent arguments in favor of stare decisis. Of course, one would hope that the dissenters and their successors would act consistently. What would happen, for example, if a future liberal majority of the court were asked to overrule District of Columbia v. Heller, the controversial 2008 decision in which the court held that the Second Amendment confers an individual right to keep and bear arms? The court, applying stare decisis faithfully, would have to decline the invitation unless it could show specific changes in circumstances—other than a change in the membership of the court—that would justify a departure from the existing state of the law. Otherwise, the dissenters would succumb to the same improper politicization of which they have charged the majority in Dobbs.

In Conclusion

My critique of Dobbs reduces to something simple: two wrongs do not make a right. Roe was wrongly decided. It was an activist decision that went well beyond the language and history of the Constitution and created a set of rules more befitting of a legislature. But the conclusion that Roe was wrongly decided does not necessarily mean that the Supreme Court should overrule it. In doing so, the Supreme Court in Dobbs also failed to adhere strictly to the rule of law. The court wrongly departed from principles of stare decisis and erred when, apparently for the first time in its history, it repealed a constitutional right that the court itself had created.

The views expressed herein do not purport to represent those of the Connecticut Judicial Branch. If you enjoyed this piece, you can find more Divided We Fall op-eds here.

Carl J. Schuman
Superior Court Judge, Connecticut; Former Assistant United States Attorney

Carl Schuman has served as a Superior Court judge in Connecticut since 1998. He is a former Assistant United States Attorney and currently is on the adjunct faculty of Quinnipiac University School of Law. He is a regular contributor to Divided We Fall.  His views do not necessarily reflect the views of the Connecticut Judicial Branch.

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