The Judicial Opinion Denying a Request by "Jane Roe" to Reopen Roe v. Wade:
A Key Opportunity to Look Back on Abortion's Legal History

By EDWARD LAZARUS
Thursday, Sep. 16, 2004

This week, on Tuesday, September 14, the U.S. Court of Appeals for the Fifth Circuit dismissed a lawsuit that sought to reopen Roe v. Wade -- more than thirty years after it was decided.

The result was obvious: The case was not reopened, for there was no reason to reopen it. Whether Roe should be overruled is a legitimate controversy. Whether it should be reopened is not.

Yet unsurprising as it was, the decision by the Fifth Circuit - one of the country's most conservative federal appeals benches -- provides a useful opportunity to reflect briefly on the current state of the abortion wars. In particular, it prompts a look back at how the legal and political landscape has changed during the years from 1973, when Roe was decided, to the present.

The Suit to Reopen Roe: Brought by "Jane Roe" Herself

More than thirty years ago, a young pregnant woman named Norma McCorvey filed suit, asking the court to strike down laws that prohibited her from obtaining an abortion. At the time, McCorvey used the pseudonym Jane Roe. The case, of course, was Roe v. Wade - and its holding was that women have a constitutional right to choose to terminate their pregnancies through abortion.

In the intervening decades, McCorvey has revealed that she is the person behind the Jane Roe pseudonym. She has also revealed that she has changed her views: Previously, an active supporter of abortion rights, she is now an anti-abortion crusader.

Indeed, in 2003, McCorvey filed suit asking a federal court in Texas to re-open and reconsider Roe v. Wade. She claimed that new scientific and legal developments undermined the decision's validity.

McCorvey's lawsuit was much more publicity stunt than serious legal enterprise. Plainly, courts cannot go around re-opening thirty year-old cases at the whim of prevailing parties who have suffered a change of heart. Nor can a lower federal court feel free to revisit a legal ruling that the Supreme Court has repeatedly revisited and modified.

Finally, this is no way for those who are unhappy with Roe to challenge it: New cases provide ample opportunity for doing that very thing - and, as I describe just below, they have done so in the abortion arena almost from the moment Roe was decided.

A Short History of Abortion Rights - From 1973, The Year of Roe, to 1992

The Supreme Court decided Roe in 1973. For almost two full decades thereafter, foes of abortion rights presented a steady stream of serious substantive challenges to the right to abortion and the validity of Roe itself.

In the wake of Roe, state legislatures in strong anti-abortion states (like Missouri and Pennsylvania) enacted hospitalization requirements, waiting periods, informational requirements, public funding and facilities bans, parental notification requirements, special licensing schemes - just about every regulation one could imagine. The idea was both to limit the availability of abortion and to present the Supreme Court, as its political composition grew more conservative, with regular opportunities to narrow or overturn Roe.

Roe and the opposing political and litigation strategy it engendered proved extraordinarily divisive and destructive. Indeed, abortion rights emerged as the single most polarizing issue within a polarized electorate - an issue that pitted those who viewed abortion as mass murder, against those who viewed the right to choice as essential to the emancipation of American woman.

The issue was pure poison for the federal judicial system, and especially the Supreme Court. Liberals judges found themselves in the ideologically comfortable but intellectually awkward position of zealously defending Roe, despite what even many liberals believed to be its weak constitutional foundation. (As I explained in an earlier column, there is much to be said for this critique.)

Meanwhile, conservative judges pounded away at Roe with an unprecedented ferocity. In doing so, they took no account of deeply revered legal principles, such as stare decisis, that over time increasingly counseled in favor of letting Roe stand.

(The principle of stare decisis - Latin for "Let the decision stand" -- holds that weight should be given to prior binding precedent by the same court, or a higher court. Thus, when a question arises that implicates prior precedent, it should not be treated as if it were an as-yet-unresolved question: The presumption should be that the prior precedent will be followed, absent very good reasons to overrule it.)

At the same time, in the public arena, the politics and ideology of abortion helped fuel the tit-for-tat destructiveness that, in the Robert Bork hearings and thereafter, came to plague the process of judicial nominations and confirmation. As I discussed in a prior column, this ugly tenor continues to taint such hearings even today.

Inside the Supreme Court, the abortion debate -- fought year in and year out over the same ground -- injected a lasting fury and bitterness into the already sharp ideological divisions among the Justices. And the Justices hardly kept the bitterness of these divisions private.

To the contrary, all the name-calling in their abortion opinions increasingly called the Court's own integrity into question: Shouldn't Supreme Court Justices be able to rise above personal insults, to consider the constitutional issues that are their duty to resolve?

A Key Watershed in the Abortion Wars: 1992's Casey Decision

For a long time, there seemed to be no exit from this cycle of destructiveness -- as abortion case after abortion case made its way to the high court.

But then, in 1992, along came a watershed case: Planned Parenthood v. Casey. There, a centrist trio - Justices Sandra Day O'Connor, Anthony Kennedy, and David Souter - took control of the Court's decision and steered the Court towards a middle ground with respect to Roe.

The key trio firmly refused to overturn Roe. But at the same time, it imposed a new and more flexible test - created by Justice O'Connor -- for assessing the constitutionality of abortion restrictions. They ruled that such restrictions were unconstitutional only if they imposed an "undue burden" on the right to abortion.

The centrist trio left vague what "undue burden" would mean in practice. But the basic parameters of the right to abortion became pretty clear: Women would enjoy a largely unfettered right to abortion through the middle stage of pregnancy, so long as they did not need public assistance to obtain one, and so long as they were not minors (who would often need parental consent). Late-term abortions, however, could be regulated.

There was no theoretical beauty to this compromise. The trio's opinion -- especially its exceedingly malleable "undue burden" test - was an easy target for intellectual barbs from both the right and the left.

But at bottom, the trio's opinion in Casey was not an act of constitutional interpretation or lawmaking. Instead, it was an act of judicial and political diplomacy - one designed to extricate the Court from the eye of the abortion rights storm.

And that, largely, is just what it did. In part, that is because the decision prudently mirrored the overwhelming public consensus over abortion: It should be legal, but it should also be disfavored - especially when the abortion occurs late in the term of pregnancy, when the developing fetus is close to becoming a child.

As a result of this act of diplomacy, relative stability and quiescence has, most of the time, supplanted volatility and fury as the prevailing state of abortion law and litigation. (In saying this, I do not, of course, mean to minimize the clinic bombings or murders of doctors and others that have occurred in the interim, or the importance of the resulting criminal prosecutions. But I do mean to make a comparison between the state of the nation on this constitutional issue before and after Casey - and to claim that after Casey, things were on the whole much improved.)

For this reason, Casey must, after 12 years, be judged a major triumph for the Court.

Abortion Rights From 1992 to the Present: The Message of Casey Is Generally Heeded

With Casey, the Court's centrists sent an unmistakable message to the anti-abortion forces. The message was this: For as long as we control the Court (and they still do), the right to abortion, in limited form, is here to stay.

More than that, the justices seemed to be sending another message: Do not bother sending us any more abortion cases because we do not intend to review them -- or, if we do review them, we intend to give no particular succor to one side or the other.

Indeed, the Supreme Court itself has decided only one significant abortion case since Casey. This was Stenberg v. Carhart. There, a narrowly divided Court declared unconstitutional a ban on so-called "partial birth abortion" that did not provide an exception for safeguarding the health of the pregnant woman.

At the same time, the lower federal courts are playing their part. Following Carhart, the federal government adopted a partial-birth abortion ban very similar to the Nebraska law that the Court had struck down in Carhart. But to no avail: In a series of recent decisions, lower federal courts, faithfully applying Carhart, have uniformly (and fairly uncontroversially) struck down the federal law as well.

Might New Supreme Court Justices Put Casey - and Roe -- In Jeopardy?

Against this background, McCorvey's suit to re-open Roe is plainly an act of desperation, geared to generate some momentum toward another run at erasing the constitutional right to abortion. But that kind of attempt will prove futile - unless, of course, dramatic changes happen on the Supreme Court.

Even if President Bush is re-elected, in order to overrule Casey - or Roe - he would need to replace two pro-abortion-rights Justices with two Justices of the opposite persuasion. That seems unlikely to happen.

For one thing, some of the Justices who might retire (such as Chief Justice Rehnquist) are anti-Roe - and would simply be replaced by Justices with the same view, making the change a wash, as far as this issue is concerned. For another thing, judicial appointments that would lead to the reversal of Roe could mean political suicide for the Republican Party - and the organization and mobilization of pro-choice Democrats in heretofore-unseen numbers.

But it is at least possible, in some hypothetical scenarios that Roe could be overruled. One such scenario would involve the health-related retirements of both Justices O'Connor and Ginsburg, and their replacement with anti-Roe Justices.

In that event, an anti-Roe majority - made up of Chief Justice Rehnquist, Justices Scalia and Thomas, and the two new anti-Roe Justices, would exist. (In dissent would be Justices Breyer, Kennedy, Stevens, and Souter.)

But for the moment, the sway of Casey remains strong - and that is something worth appreciating. Sure, the decision is far from perfect. Sure, it did little to cure the terrible damage already done by the abortion wars to our body politic. Still, Casey has brought a needed calm to one front in the virtual civil war that divides our legal culture - and that is a nearly miraculous achievement these days.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books - most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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