For a long time, I thought that whatever changes took place on the Supreme Court, Roe v. Wade would not be overruled outright but rather subjected to death by a thousand cuts. I have changed my mind. Dissatisfaction with the squishy “undue burden” test, which generates dozens of politically charged cases a year, together with changes in composition of the Supreme Court raise the clear possibility that the Court, on being clearly confronted with the viability of the 1973 cases in a competent brief, would be ready to cut the Gordian Knot.
The Dobbs case and the brief filed by Solicitor General Scott Stewart of Mississippi presents that opportunity. Prior to Roe, the nation’s two most eminent federal judges, Learned Hand and Henry Friendly, both heavily versed in modern history and not mathematics majors like Justice Harry Blackmun, cautioned against a sweeping decision. Judge Hand told the American Law Institute that it would cause “conflicts undreamed of by those using this facile means to enforce their will,”; Judge Friendly’s misgivings have been documented by Judge Raymond Randolph, a former law clerk of his. The ALI’s proposed statute created procedural hurdles to abortion, while allowing it in cases of severe health consequences to the mother, and potential severe infant health defects, not merely danger to the mother’s life, as in the Texas statute in Roe. A Georgia version of it was invalidated in Doe v. Bolton.
The ban on abortions after 15 weeks of pregnancy in the Dobbs statute seems well within the ALI’s search for a via media, and could be upheld by overruling Doe and leaving Roe standing. Statutes denying abortions in cases of severe health consequences and severe fetal defects would be invalidated; other prohibitory statutes such as those forbidding sex-selection abortions, or requiring third party counseling, committee approvals, waiting periods, and forbidding abortions after a certain point, whether “quickening,” fetal heartbeat, or viability, would be upheld. Like the pre-Roe common law, it would leave the legality of the “morning-after” pill untouched.
Although the British got along without judicial overruling for more than a thousand years, it is an established American practice, and so the overturn of seemingly long precedent need not threaten our civic order. I have full confidence that the stability of American law will not be endangered by the overruling of Doe v. Bolton after 49 years. Plessy v. Ferguson (segregation) was overruled after 58 years; Bowers v. Hardwick (sodomy) after 19 years; Lochner v. New York (regulation of working hours) after 50 years; Adkins v. Childrens’ Hospital (minimum wage) after 14 years; Baker v. Nelson (gay marriage) after 43 years; and Korematsu v. United States (race discrimination) after 74 years. This would not be a hasty overruling like the two years in the legal tender cases or the three years in the flag salute cases. Nor should changes in personnel render the Supreme Court squeamish; the Supreme Court is not intended to be uniquely immune among the three branches to checks and balances, of which the confirmation process is one.
Roe’s absolute ban on abortion restrictions was immediately eroded by concerns about rights of parents, absence of real medical advice, coercion by boyfriends, informed consent, and improving medical technology. The rationale of Roe, the supposedly sacred relationship between a woman and her physician, was rejected by virtually every prominent constitutional commentator, the ever-flexible Laurence Tribe being virtually the only exception. Justice O’Connor pointed out that in most cases, the relationship was “essentially nonexistent.” Its successor rationale, a woman’s “bodily integrity,” had been expressly rejected by Justice Blackmun in a lengthy discussion in Roe, citing the compulsory vaccination and mandatory sterilization cases. Covid-19 vaccination problems and the advent of DNA engineering and sex-selection abortions in the Far East have drained this substitute of viability. Justice Ginsberg and others then turned to arguments based on sexual equality, illegitimate because of non-ratification of the Equal Rights Amendment.
Secretary of the Treasury Janet Yellen and her husband, the Nobel Prize-winning economist George Akerlof, noted in articles published in the Quarterly Journal and Brookings Review in 1996 that the abortion-on-demand backup to birth control caused the demise of the “shotgun wedding”—“deal with it” becoming the mantra of the putative husband. While 43 percent of unwanted pregnancies resulted in marriage in 1970, only 9 percent did so in 2018. Births out of wedlock skyrocketed from 5.7 percent among white Americans and 38 percent among black Americans in 1970s to 29 percent and 71 percent respectively in 2018. Writers began to comment on the “feminization of poverty,” invisible to legal academics in their cosseted bureaucratic welfare states.
One effect of the “sexual liberation” decisions was the diversion of public attention and political effort from economic to social issues, a phenomenon noted both by the conservative Catholic Mary Ann Glendon and the cosmopolitan Marxist Eric Hobsbawm. At the beginning of the Industrial Revolution, Adam Smith noted in the neglected fifth book of his Wealth of Nations that in every society, there were two systems of morality, a licentious one among “men of wealth and fashion” and a severe one among the working classes, for whom sexual license would be ruinous. Our “men of wealth and fashion” in the media and courts have proliferated license to all classes. Periods of extreme license, as in the Restoration period in England, the French and Russian Revolutions, and the Weimar Republic, have usually been succeeded by periods of repression. The denial by Justice Stevens in an abortion case and by five justices in Obergefell of religion and morals as legitimate sources of law has fostered excess in other fields by enshrining situational ethics as a constitutional principle, notwithstanding Justice Holmes’ reminder, on the first page of his The Common Law, that “the law is the external expression of our moral life.”
There were other side effects to Doe and Roe. Justice Blackmun’s enthusiasm for abortion gave rise to his invention of the “commercial speech” doctrine to protect advertising by abortion clinics. This fostered the advertising of prescription drugs, the destruction of general and independent legal practice by specialist legal advertising, the erosion of the “fairness doctrine” for radio and television, Citizens’ United and the elimination of restrictions on campaign finance, including on expenditures by self-financed candidates, and the increasing questioning of SEC and FTC regulations.
While enthusiasm for judicial lawmaking revived with Brown, it gained further impetus from Roe. Constitutional judicial activism is well-known, but less attention has been given to the statutory judicial activism founded on individualist free-market premises, which reinterpreted the Sherman Act to eliminate meaningful restrictions on retailing and media monopolies while “harmonizing” with the new orthodoxy statutes explicitly grounded in opposition to it: the Robinson-Patman Act, the fair trade laws, the Celler-Kefauver Act, and the Bank Merger Act. Some of the effusions of the prophets of the new dispensation, including Robert Bork and Aaron Director, would bring a blush to the cheek of David Ricardo. Even the corporate duty of loyalty limiting excessive officer compensation was eroded.
The effects of a decision to overturn Doe would be limited but significant. Abortion on demand will remain legal in many states, whose laws through migration will erode the laws of restrictive states, as with divorce. Laws like the recent Texas one will be repealed or amended rather quickly as notorious cases arise. Tolerance in the states of differing moral scruples may even set a good example for our foreign relations; Pope Francis has recently ascribed the American failure in Afghanistan to disregard of the claims of localism and religion. Benjamin Disraeli gave the same critique to the practices of the East India Company, which gave rise to the Indian Mutiny of 1857; the lighter hand he successfully recommended protracted British rule in India by 90 years. Our more extreme national politicians would no longer be able to raise money off the abortion issue, and might have to divert their attention to economics and foreign relations, the appropriate subjects of national politics. An increasing number of young women might, because of the uncertain availability of abortion, forswear the “hook-up” culture and restrict their favors to those who they can see themselves being married to. Some reduction in the illegitimacy rate and the feminization of poverty will surely result, as will improvement in political discourse when claims are addressed to legislatures rather than courts and are founded on social evidence, not on claims of absolute right.
George Liebmann is the president of the Library Company of the Baltimore Bar and the author of The Common Law Tradition: A Collective Portrait of Five Legal Scholars (Transaction Books) among other works.
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