Excerpt



Now let’s experiment: can Roe be overturned? Undoubtedly: it is one of the failures of the common law that stare decisis is, in the long run, completely optional for courts, a phantom and a mere convenience that allows a court to retain and apply decisional law only when it deems such retention and application necessary to the policies that it wishes to propound. Any decision of a court of competent jurisdiction can be overturned by that court or a court of superior jurisdiction, and Roe would find no immunity under that paradigm. But to return to the central issue: under what circumstances could Roe constitutionally be overruled?

Roe was premised on the substantive due process provisions of our constitutional jurisprudence, provisions which protect a woman’s right of privacy – at the time, a fundamental right – from injunction by either the legislature or the judiciary, exempting certain procedural safeguards such as the need for a licensed physician or the demand for informed consent, like any other surgical procedure. In the 1992 case of Planned Parenthood of Southeastern Pennsylvania v. Casey, Roe was partially reversed: Blackmun’s trimester analysis was dismissed from the larger framework of the overall analysis as untimely and not in accord with medical science or the capabilities of its technology; in a word, the viability of the fetus is much stronger and easier to safeguard than it was in 1973, so it is entitled as a matter of law to protection if not deference. What sprang up instead was the test of undue burden: the state can regulate abortion to the extent that such regulation only protects the state’s interest in the enactment of persuasive measures which favor childbirth over abortion, even if those measures do not further a health interest. Beyond these and other procedural requirements undertaken to protect the state’s legitimate interest in promoting procreation, a decision to have an abortion cannot be enjoined by the states. A fundamental right to an abortion is negated under this interpretation, but a privacy right in making the decision still vests in the mother. That doctrinal shift was a direct outcome of one of the greatest misconceptions about Roe: it did not confer a right to abortion. Instead, it recognized a right of the mother to make the decision to obtain an abortion in relative but not complete freedom from state interference, a holding that was clarified in the 1977 case of Maher v. Roe. It was this right that the court later upheld and, to be sure, restricted in Casey.

Thus, under the organon, the only way to overturn Roe completely – it was partially, if not mostly, overturned by Casey – is to locate, formulate or otherwise attribute a countervailing but quantifiably and, thus, qualifiably, weightier right of privacy vested in the fetus, a fundamental right to protect its presumed decision to live, evinced by the grant of procedural authority to a hypothetical or even duly appointed guardian ad litem under a state’s police power, probably the child dependency laws, since there would almost certainly have to be a presumptive finding, legislated if not adjudicated, that a woman who wished to terminate a pregnancy is not a competent parent and has no right to speak or make decisions for the fetus.

In my view, that is the only way to overturn Roe: to legislate a fundamental right that overrides the mother’s qualified right to terminate a pregnancy, a supercedingly powerful and persuasive right to live, demanded by and attributed to the fetus, under the law of presumption and waiver: the legislature may presume that a reasonable fetus would wish to live, and that a mother who wished to terminate a pregnancy is not a competent parent and has waived legal, if not physical, custody of the fetus upon birth, as any mother of a dependent child would be found to have done.

The only way.

But it would be difficult: promulgated by a state legislature, such a statute would not survive a constitutional attack: the Constitution, source, reliquary and repository of substantive due process, is the supreme law of the land, and Roe and its progeny are premised upon that source of law. Only a competing source of law of comparable doctrinal supremacy – more precisely, a source of at least equal jurisprudential stature and power – would permit recognition of that countervailing right, so the Constitution would have to be amended, a difficult, although certainly not impossible task. And that, of course, would require congressional action. But it could be done: a constitutional amendment attributing a fundamental right to life – more correctly, a private right to decide to be born – to a fetus. To be sure, the Supreme Court is the focus of the abortion debate for the same reasons that it was the victim and cynosure of public opprobrium in Dred Scott: because the pro-life citizenry wants to bypass a Congress which has made clear that it will not legislate the desired constitutional provisions, those which disarm Roe’s effect and grant that aforementioned countervailing right to the fetus.

Should it happen?

I don’t know, and I don’t care. The mechanics of Roe are interesting to me only for what they reveal of the nomothetic formalism of juridical science. As I’ve indicated, as a Catholic, I’m against Roe, but as a judge, I must respect and apply constitutional precedent. The logic and results of Roe and its progeny are distasteful to me personally, but the law does not have to be appetizing. I find that the Roe line of cases meets the requirements of sound constitutional analysis and doctrinal legal formalism: statute, constitutional test (which the statute failed), decision, countervailing statute if necessary and feasible (which has not yet appeared but would probably not be constitutional absent an enabling source of law, like a constitutional amendment). Too often, federal judicial candidates are asked: do you believe that Roe should be overturned? The proper but politically inexpedient answer is: it doesn’t matter what I, or any judge, believes. Roe, like any precedent, even a constitutional precedent, can be easily overturned when a properly reasoned formulation, one that proceeds from and is premised upon a higher-order source of law, and that sufficiently addresses and balances the rights and privileges of each party at the center of the analysis, is presented that calls for the decision to be overturned.

Until I, as a judge, had been offered that framework by a lawyer at oral argument, grounded upon a constitutional source of law, I cannot and could not overturn it whether I agreed with it or not.