Opinion Piece: Roe vs Morgentaler Part 1
(Image of the current justices on the US Supreme Court bench. Top row left to right: Brett Kavanaugh, Elene Kegan, Neil Gorsuch, Amy Coney Barett. Bottom: Samuel Alito, Clarence Thomas, Chief Justice John Roberts, Stephen Breyer, Sonia Sotomayor. Image credit to the New York Times)
Roe v Morgentaler
You have likely heard the news: Roe vs Wade is about to be overturned
Last month, the Supreme Court of the United States had a draft ruling leaked to Politico magazine, regarding the constitutionality of abortion regulation in the state of Mississippi. This essay will have two parts: the first part will discuss the reasons for the SCOTUS judgement. The second part, to be published later, will compare it to Canada’s own supreme court rulings (namely, R. v. Morgentaler) on the regulation of abortion.
This article will not be about whether abortion should be legal, but to briefly outline the legal arguments around Roe v. Wade and the recent attempts to overturn it. The documentary Reversing Roe (on Netflix) is an excellent film to provide background around the evolution of abortion laws in the United States, and their impact on women.
The majority argued that the landmark 1973 Supreme Court case Roe v Wade, and its 1992 successor Planned Parenthood vs Casey, had been wrongly decided and should be overturned. The opinion concluded that: ‘’Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each state from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule these decisions and return that authority to the people and their elected representatives.’’
This decision should have surprised no one. For the past 30 years, Roe and Casey have survived repeated constitutional challenges, by one or two swing votes on the Supreme Court. Dobbs vs Jackson was only the most recent of them. It had been a law passed by the state of Mississippi, banning abortions after 15 weeks of pregnancy (far short of the 24-week ‘viability line’). It had been argued before the Supreme Court in December 2021, and the judgment was due in June or July. Instead, a draft majority opinion was leaked to Politico, Chief Justice Roberts confirmed its authenticity.
What is Roe vs Wade?
Roe vs Wade is the landmark SCOTUS ruling in 1973 that effectively legalized abortion across the United States, when the court struck down a Texas law that had criminalized the procedure. They found that a woman’s right to an abortion was protected in the 14th amendment of the Constitution, regarding the implicit right to privacy. Choosing whether to have an abortion is an exercise of bodily autonomy, bodily autonomy is a part of an individual’s privacy, therefore a ban on abortion violated an individual’s right to privacy.
Prior to Roe, abortion regulation was a state-by-state case.
Here is what the relevant section of the 14th amendment says:
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the states wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny any person within its jurisdiction the equal protection of the laws.
Nothing here about the right to privacy, let alone the right to an abortion. The Roe ruling found it to be an implicit right. The legal reasoning behind any Supreme Court decision would be a dense essay, of course. But you can already start to see the basis of the successive constitutional challenges.
The court divided the pregnancy term into three trimesters, with no restrictions in the first trimester, some regulation in the second, and permit prohibition in the third.
Roe was partially upheld in 1992 by Planned Parenthood vs Casey, which permitted more state regulations if they do not pose an undue burden.
Living Constitutionalism vs Originalism.
To understand the forces at play around Roe vs Wade, it is important to understand the constitutional argument at play.
Constitutional jurisprudence in the United States falls into one of three camps: living constitutionalism, originalism, and swing voters. In rough terms, living constitutionalists are liberal and originalists are conservative.
Living Constitutionalists believe that the Constitution is a living document that can change over time, through interpretation and amendment. They are more flexible in their interpretations and are willing to help bring about social change through judicial rulings.
One example is the 2015 Obergefell vs Hodges decision, which legalized gay marriage across all 50 states, effectively overruling states that had not yet done so.
Living constitutionalist justices include the late Ruth Bader Ginsburg, Thurgood Marshall, and current justice Sonia Sotomayor and incoming justice Ketanji Brown Jackson.
In the second camp, are the originalists. Originalists believe that the constitution should be strictly interpreted as it was written and that the Supreme Court should stay in its lane; judicial restraint. If a law contradicts the constitution as it’s written, they strike it down. If it doesn’t, then it passes. Prominent originalists include current Justices Clarence Thomas, Samuel Alito (the author of the draft), Neil Gorsuch, and the late Antonin Scalia. These justices often accuse living constitutionalists of substituting their own values for the written law.
The third and final group are the swing voters; and the term is self-explanatory.
Generally, Republicans prefer Originalists and Democrats prefer Living Constitutionalists. Roberts, Alito, Thomas, Gorsuch, Barett, and Kavanaugh were appointed by Republican presidents and confirmed by a Republican Senate majority. Sotomayor, Kegan, Breyer and the incoming Jackson, were appointed and confirmed by Democrats. Not one of the current nine justices would be on the Supreme Court Bench had the other party been in power at the time of their nomination.
Justices Alito, Thomas, and Scalia had all dissented against the Obergefell vs Hodges decision, for the same reason that Roe may soon be overturned: states’ rights. Linked is the full decision for the Obergefell decision. The main decision is at the beginning, dissents begin on page 40, and Scalia’s dissent begins on page 69. The author especially recommends the reader view Scalia’s dissent. Once you understand how strongly an originalist can object to the Supreme Court interfering in a state’s right to prohibit gay marriage, you will begin to understand their judicial position in an issue that is far more socially controversial.
The United States’s federal government has a lot less domestic power than Canada’s, and the 50 states there have more power than our own provinces. Each state can make their own laws; they can decriminalize marijuana (or not) carry the death penalty (or not), restrict access to certain firearms, and up until 2015, permit or prohibit gay marriage.
The United States was founded during the revolutionary war against the British Monarchy, and they have been distrustful of centralized authority ever since. Instead, more power goes to the states, so the people of Mississippi can decide how they want to live and likewise with the people of California, and so on. Of course, sometimes this can go horribly wrong; slavery and segregation had both been decided at the state level. It took a civil war to put an end to one, and decades of litigation, civil unrest, a Supreme Court Decision, and the federal Civil Rights Act to help put an end to the other.
In modern times, for an issue that had not been nationally settled, (ie, gay marriage), originalists believe that it should have been left to the state level. Ruling in favor of legalizing gay marriage across all 50 states was an inappropriate way to settle the issue and a judicial overreach. Here we quote Antonin Scalia’s dissenting opinion in the Hodges case: ‘’Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court’’ and later he writes ‘’ to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.’’
The same, of course, goes with Abortion. If a democratic majority of people in California believe it should be permitted and a democratic majority in Texas believe it should be prohibited, who are 9 unelected justices to decide what ought to be?
This view was most starkly put by Justice Scalia’s dissenting opinion in Planned Parenthood vs Casey. He compared the majority decision to the Dred Scott decision of 1857.
21 years after Casey, Texas passed a law challenging Roe v Wade, and it went to the Supreme Court in 2016. It was blocked by the Court, 5-3 (the decision was made between Scalia’s death and Gorsuch’s appointment). In 2020, Louisiana passed another law challenging Roe yet again, and it was rejected by the Supreme Court in June 2020, by a 5-4 margin. Just a few months later, Ruth Bader Ginsburg passed away and was replaced in the final months of the Trump Administration by Amy Coney Barett- a staunch originalist who joined Alito’s majority in the draft opinion.
One vote is all it takes.
This was a long time coming, and of the 9 justices on the Court, there were only three to watch out for. Gorsuch, Thomas, and Alito have always ruled in support of the State’s right to regulate abortion, while Sotomayor, Breyer, and Kegan have always ruled in support of Roe and Casey. Kavanaugh also aligned with the Conservatives during the Louisiana case. Chief Justice Roberts is a true swing vote, and this was Barett’s first Roe challenge case (not including the 2021 Texas case that has been allowed a trial period).
Where to go from here?
If this draft opinion turns into a legal ruling this summer, then abortion laws go back to where originalists believe they should have belonged all along: the legislative branch. Because there is no federal statute codifying the protections of Roe, it goes back to the states.
Staunchly Democratic states like New York, Massachusetts and California will, for the time being, not experience any legal changes. Red states like Texas, Louisiana, and Mississippi, on the other hand, will ban or severely restrict abortion access almost immediately. About twenty states already have ‘trigger laws’ to go into effect the moment Roe is struck down.
Time will tell if this will last: elections are determined by who shows up. Pro-choice voters in red states have a reason to show up now.
Can the federal government pass their own statute to replace the protections under Roe?
In theory yes, but its’ a matter of votes, especially at the Senate level. Democrats have tried, repeatedly. As it stands now, the Democrats have a majority in the House of Representatives, and a slim senate majority with Vice President Harris. It takes 50 votes to pass a bill, 60 without a filibuster. There are a handful of Senate Democrats (i.e., Manchin) who represent swing states and are reluctant to do anything to set off the Pro-life voting bloc. Pro-choice Republicans can readily be found where unicorns and pixies live.
Why couldn’t they do this before? Every bill passed must go through the House, and the Senate, and be signed by the President (or an overridden veto). If the House or Senate is controlled by one party and the presidency by the other, legislative gridlock is common, especially for something like this. Barack Obama and Bill Clinton only had control of both Houses of Congress for their first two years in office, and they were busy with other things (healthcare, economy, etc.) at the time.
So that leaves the November 2022 midterms, and the Democrats will use this as a lifeline to mobilize pro-choice voters to either keep or increase their majorities in both houses. They might be able to pass a federal statute that affords at least some of the protections of Roe or Casey. Long term, they will be looking to the future composition of the Supreme Court.
It only takes one more vote.
The second part of this essay will be examining Canada’s own abortion laws and supreme court decisions; and why you have never heard of R v. Morgentaler outside of a pre-law class.