DANIEL VAUGHAN: Roe v. Wade is not settled law

July 2, 2018

DANIEL VAUGHAN: Roe v. Wade is not settled law

Across the Sunday talk shows, there was a repeated refrain about abortion, Roe v. Wade, and potential successors to Anthony Kennedy: Roe v. Wade is settled law.

This “settled law” response is a clever dodge for senators in purple states trying to avoid hard questions on abortion. In that limited sense, I understand their reaction. They can legitimately claim that the right to abortion was upheld twice before the Supreme Court: in Roe v. Wade and Planned Parenthood v. Casey.

However, legally speaking, the claim that abortion or Roe v. Wade is “settled law” is false. There’s nothing settled about the legal rationale underpinning the so-called “right to an abortion” — because each time that right was upheld, the justification changed dramatically.

Before 1973, laws concerning abortion were a patchwork set of statutes across the country. The earliest known statute directly dealing with abortion came in 1821. Since then — like any divisive issue left to the states — each community dealt with the matter differently.

Then came the 7-2 decision in Roe v. Wade, when the Supreme Court held that women had a right to an abortion. The Court ruled that the right came from a penumbra of the right to privacy that the Court had previously inferred from the Due Process Clause of the 14th Amendment.

To build that right, Justice Harry Blackmun, writing for the majority, created the trimester framework, relying heavily on public policy arguments to balance state concerns on abortion. Blackmun and the Court tried to build an arbitrary line wherein one case abortion was okay, but if you crossed an arbitrary line, the state could step in to prevent abortions.

Justices Byron White and William Rehnquist dissented at the time, and noted accurately:

I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant women and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes.

I say the dissent was accurate because, for all the claims that a 7-2 decision is settled law, the legal rationale behind Roe was gutted in 1992 by Justices Anthony Kennedy and Sandra Day O’Connor in Planned Parenthood v. Casey.

The original trimester framework, created by Blackmun — who was still on the court for the Casey decision — couldn’t survive a coherent legal argument against it in Casey. Kennedy, O’Connor, and David Souter, desperate to save the right to abortion, dumped the trimester framework and created a new rationale: the undue burden standard.

But while Roe v. Wade was a 7-2 decision, the new legal standards under Casey were incredibly divisive. There wasn’t a strict majority opinion in the case. Some of the justices joined in the final judgment of the Court, but disagreed on the legal rationale.

The core group of justices — Kennedy, O’Connor, and Souter — agreed on all parts of the case. Blackmun and John Paul Stevens only joined certain sections of the majority opinion, including the final holding. But Blackmun and Stevens also wrote individual opinions where they concurred and dissented from the Court’s majority opinion.

There was more agreement among the dissenting opinions, where Rehnquist and Antonin Scalia both wrote scathing dissents, and joined each other’s objections, along with White and Clarence Thomas. Rehnquist made a point of directing readers to the morass of legal standards the plurality opinion made, arguing that because none of them agreed in full in some sections, it wasn’t legally binding.

In short, Planned Parenthood v. Casey destroyed the 7-2 decision of Roe and, in the process, created a legal mess that only kept one primary aspect of Roe. And to top it off, Casey has passages that make no sense to any rational reader. Kennedy authored the now infamous “mystery of life” passage as one of his reasons for upholding the central holding in Roe:

At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

That flowery writing is one of the most inane passages ever written in case law. It can mean anything to anyone who reads it and says nothing if you want a grounded legal principle. It’s the most Kennedy-esque line you’ll see, and one of the reasons he was so frustrating for jurists on both sides of the aisle.

So where does that leave the “right to abortion”? Far from settled, for starters. The only thing you can say definitively is that the Supreme Court has held for some time that there’s somehow a right to an abortion emanating from the penumbra of privacy in the 14th Amendment. Why and how that abortion right exists is not settled in case law and open for debate.

The reason this hasn’t been challenged more forcefully in the meantime is due to state courts falling in line under the first right found under Roe. The only way the Supreme Court can hear a challenge to the fundamental right created in Roe is if a state passes a law voiding the Roe right. Then, the Supreme Court for that state has to uphold the law annulling the Roe right.

That’s a difficult, but not impossible, hurdle for legal challenges to abortion. It’s one of the many reasons most rational pro-life jurists agree that replacing Kennedy is just the first step in a protracted legal process of overturning Roe.

But while that process may be laborious, the “right to abortion” is not settled law.


Daniel Vaughan

Daniel Vaughan is a columnist for the Conservative Institute and lawyer in Nashville, Tennessee. He has degrees from Middle Tennessee State University and Regent University School of Law. His work can be found on the Conservative Institute's website, or you can receive his columns and free weekly newsletter at The Beltway Outsiders. Connect with him on Twitter at @dvaughanCI.