September 15, 2004
Reaching Roe Again
by Nick Morgan
September 15, 2004 05:50 PM
As you may have heard, the Fifth Circuit rejected a request to reverse Roe v. Wade on straightforward justiciability grounds (i.e., the "live controversy" expired decades ago). Matto Ichiban, however, favorably quotes the following passage from the concurring opinion:
[T]he problem inherent in the Court’s decision to constitutionalize abortion policy is that, unless it creates another exception to the mootness doctrine, the Court will never be able to examine its factual assumptions on a record made in court. Legislatures will not pass laws that challenge the trimester ruling adopted in Roe (and retooled as the "undue burden" test in Casey. No "live" controversy will arise concerning this framework. Consequently, I cannot conceive of any judicial forum in which McCorvey’s evidence could be aired.
Matto seems to find this concern persuasive:
The only way for a court to revisit Roe in its entirety would be for a state to outlaw abortion through its legislature, wait for someone to challenge the law on due process grounds, and then rule accordingly.
But in that case, also interestingly, abortion opponents would not be able to litigate the case [that] revisits the issues they hope to overturn (except indirectly through the government). This puts the state in the position of being a social activist: It must flout the law in order to bring about a substantive change at the Supreme Court level. Off the top of my head, I can't think of any other similar ruling completely shielded from subsequent Supreme Court review like this.
For starters, it would seem that any law declared unconstitutional would create the same problem. A rehearing would presumably require relegislating the unconstitutional law. That's what happens when laws are declared unconstitutional. I see no problem in the ordinary citizen's inability to relitigate a state government's interests in law-making power. Ordinary citizens can't challenge Lawrence, for instance, because the unconstitutionality of anti-sodomy laws is a limit directly imposed on the state, not the citizens. It thus makes perfect sense that the state must be the interested party in "directly" relitigating constitutional issues, just like the state is the relevant interested party in directly passing laws that citizens support.
But the issues in Roe as in Lawrence or any similar cases would probably have little trouble finding their way to a Supreme Court willing to reconsider them. If a state is unwilling to pass laws identical to the unconstitutional ones, it need only pass laws pushing the limits of the holdings in question. A state law extending permissible waiting periods for abortion, for instance, would undoubtedly give the court a chance to consider, and overrule, Roe if it wanted. The concurring opinion underestimates courts' willingness to address issues that are not squarely presented.
Does Matto also complain that there is no way to retest the constitutionality of segregation without a state passing a new Jim Crow law, or that there's no way to retest the constitutionality of free speech bans without the State imprisoning someone for wearing a protest shirt in a courthouse?
Good point, UCL, but the best person to ask is Matto
Uh, UCL, is there a massive and vocal bloc of Americans who want to re-institute segregation? or who want to put protest-shirt-wearers in prison? The comparison just doesn't work.
In a legal sense, the 5th Circuit is correct that the "live controversy" no longer exists. In a layperson's sense, however, Judge Jones's anti-choice concurrence proves just how much of a "live controversy" remains; she can't stand to dismiss McCorvey's case on mootness grounds without bitching out the Supreme Court for having declared a constitutional right to abortion in the first place.
I agree with Nick's assessment that simply restricting abortion without banning it -- which is the situation that gave rise to Casey -- is sufficient to bring the issue before the Supreme Court. Heck, the federal ban on "partial birth" abortions would be enough, and judges already have declared this law unconstitutional under Stenberg.
I didn't think I was complaining in the first place, but upon reflection I think your observations are mostly correct: there could be no direct challenges to segregation or wearing offensive t-shirts in certain locations without direct state action.
However, I assume you were trying to make your point to make me look silly or somehow inconsistent, so perhaps I can make my point clearer. In the abortion context, even restricting abortion would presumably flout direct Supreme Court precedent, unless it was done in an weird indirect way. Even partial birth abortion has a precident directly on point, Stenberg v. Carhart. Also, challenges to the abortion jurisprudence (except in McCorvey's case) would be a challenge to others exercising a privilege, not to one's own restriction of liberty, making it difficult to frame a case.
In other contexts, I don't see quite a hard line: other free speech issues could come up that poke holes in the underlying jurisprudence easier than holes could be poked in the abortion jurisprudence. Racial segregation is probably similar to abortion in this aspect, but I didn't see any reason to "complain" that it couldn't be challenged without a state passing a law, although if you'd like to make a case for why a Roe opponent must also be a Brown opponent to avoid logical inconsistency, then be my guest.
I simply thought it was interesting that the state would have to take such an active role in changing Supreme Court precedent, and that the actual litigation would be done by Roe supporters challenging the law. I could go on about how liberal and conservative social activism differs, but I won't.
Anyway, I hope this clarifies how I feel about segregation and free speech in the abortion challenge context.
>As you may have heard, the Fifth Circuit rejected a request to reverse Roe v. Wade on straightforward justiciability grounds (i.e., the "live controversy" expired decades ago)
I had read about this case a while ago. Frankly, the basis for the case made no sense to me, since the plaintiff Roe (in RvW) was not under any continuing duty under the prior case. It struck me that the only thing that Roe was really seeking was to dissociate herself from the Supreme Court's ultimate decision, which doesn't strike me as being a justiciable controversy.
As to Matto's issue
>The only way for a court to revisit Roe in its entirety would be for a state to outlaw abortion through its legislature, wait for someone to challenge the law on due process grounds, and then rule accordingly.
Well, yes--kind of. A challenge to a law (the state would need to outlaw abortion, that is correct) might not be on DP grounds--the challenge would likely be on the same grounds on which Roe was decided. What would likely happen is that enforcement of such a statute would be enjoined at the trial and circuit court level, and, if the Supreme Court wanted to hear an appeal, it could do so and possibly reverse (overruling Roe) or affirm (affirming Roe). I suppose a state might try to "nibble around the edges" of current legal doctrine, as Nebraska tried to do with the statute involved in Stenberg, but that won't necessarily get the Supreme Court to address the ongoing viability of Roe.
One thing that has bothered me about the federal "partial birth abortion" (PBA) ban, that I have yet to see addressed, is what power granted to Congress in the Constitution it purported to base the PBA ban on. The state of Nebraska might not have had to address that issue under its state constitution, but it seems to me that Congress would have had to. I suppose that, for the opponents of the federal PBA ban, the fact that a court held it unconstitutional on the ground that it did would suffice. But from a standpoint of federalism, it would be nice if Congress and/or the courts would address the "power" issue. Maybe they have, but I haven't seen any mention of it.
Roe was decided on due process grounds.
In all seriousness, I think you overstate and oversimplify the problem. Major constitutional holdings are only rarely so bright-line that no factual distinctions can be made that would allow the Supremes to revisit their holding if they really wanted to (which, thankfully, they usually do not). Neither Roe nor Casey, for example, were blanket bans on regulation of abortion, as you well know and as is demonstrated by the very existence of the Casey decision.
Couldn't Roe be re-visited directly through an action by a fetus (through its next friend, obviously) seeking to enjoin its own abortion? Presumably, such a suit would be dismissed in the district court for a variety of reasons, and the dismissal upheld at the Circuit level, but the point of the suit is that one presumably has some basis for hope that the Supreme Court is ready to re-visit Roe and hence would grant cert.
Otto at September 16, 2004 06:56 PM
>Roe was decided on due process grounds
Well, in a "kind of--sort of" way.
From the syllabus
]State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother's behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy. Though the State cannot override that right, it has legitimate interests in protecting both the pregnant woman's health and the potentiality of human life, each of which interests grows and reaches a "compelling" point at various stages of the woman's approach to term.
The substantive issue in Roe was not "due process," it was a purported right to privacy, clearly as the right had been divined in Griswold vs. CT.
Tom T. at September 19, 2004 07:34 PM
>Couldn't Roe be re-visited directly through an action by a fetus (through its next friend, obviously) seeking to enjoin its own abortion?
Roe could be re-visited under any of a number of arguments. Quite frankly, instead of tilting at windmills like the federal "partial birth abortion" ban--a ban that Congress obviously knew would fail, but which was passed for political gain--Congress might have re-visited it under the 14th amendment's equal protection provision. The argument would go somewhat along the lines of the following. All states have laws against murder, and so it strikes me that the fifth section of the 14th amendment might be a basis on which Congress might require states to enforce their murder laws in instances of abortion--an intentional killing of a living being. I have no idea whether or not that might prove to be acceptable to the federal courts, but at least something like that might have a constitutional basis. The fact that Congress apparently has no interest in attempting something like this makes it clear to me that the people inhabiting the halls of congress have no interest in the subject--that they are nothing more than a bunch of cynics playing the voters for the idiots that they apparently are.
From the syllabus:
"State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother's behalf without regard to the stage of her pregnancy and other interests involved VIOLATE THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT . . . ."