Framing the Abortion Argument

Two hours of intense oral argument ensued. The lawyers argued well and the bench was engaged and very well prepared.  Arguments in Big Cases can often fail due to the buildup; however, this case was not like Super Bowl matches.  [If you missed the proceedings, the full audio is available here, and the official transcript here]

The case is so well-researched and debated over for more than 50 years, it’s difficult to offer anything new. However, two points which were at the center of the dispute struck me as notable.

This involves applying the doctrine of stare decisis. This, of course, is central to this case. Mississippi expressly requests that Court overrule holdings from prior precedentRoe V. WadeAnd Casey vs. Planned ParenthoodIn regard to the constitutional rights of women to end their pregnancy, (

It isn’t unusual for litigants to ask the Court overturn previous holdings. The Court has a well-developed procedure and analysis that answer the question. The Court stated it as follows: Casey:

This Court will reexamine a previous holding to make a judgment. It uses a variety of pragmatic and prudential considerations to determine the cost of affirming or overruling an earlier case and test its consistency with that ideal rule of law. For example, it is possible to ask [a]Whether the rule is inapplicable because it defies practical application. [b]If the rule can be recited with a type of reliance which would cause a hardship on the outcome of overruling or add injustice to the price of repudiation [c]If related laws have been developed so much that the existing rule is no longer a part of an abandoned doctrine. [d]If facts are so different or have been viewed so differently that they have taken away the rule of significance or justified application.

What DoesHowever, this makes it unusual. This constitutional right has been examined by the Court in stare decisis. CaseyItself, wherever it is held,After a long discussion of the issue, it was decided that the answer is “within normal bounds”. stare decisisAnalyse, and with respect to the considerations upon which it customarily pivots, the stronger argument for Roe’s central holding with whatever degree any of us might have personal reluctance, not overruling, [The discussion in Casey of how the rule of stare decisis should be applied to the constitutional right recognized in Roe is quite interesting; if you haven’t read it, you can find it here]

As Julie Rinkelman, an attorney for Respondents, stated, the Mississippi case was about precedent on precedent – precedent squared. Mississippi is asking for the Court not to throw out its law. stare decisisBy overturning substantive holdings RoeAnd CaseyIt is a right granted to a woman by the constitution to end a pre-viability pregnancy. stare decisisBy overturning Casey’s stare decisis holdingThat the “normal stare decisis” analysis does not need to be overruled Roe’s Substantive holding

And to make it more simple: If it wants to rule, the Court must. RoeAnd CaseyExplain why you believe the principle of stare decisisIt is dumping its prior holdings and applying the principles stare decisisThis constitutional right is yours.

This can be a bit of a headache (could there be precedent3) The decision will be made. ThisCase be precedent in order to use precedent to decide the precedent. However, I believe that framing the central questions this way is a significant advantage to the Respondent. For Mississippi to perform the requested task, it is necessary for the Court to provide explanations as to why and how. Roe You got it wrong. CaseyIt was wrong to hold that the principles stare decisisDo It is notRoe must be overturned (not just because it is wrong but also because it justifies our tossing). This Also, keep your hands off of the wheel. This is not something I believe will be hard to accomplish.

In a discussion on the source and meaning of the constitutional rights asserted by the Respondents, the second moment was noteworthy. Justice Thomas asked the question as follows:

JUSTICE TOMAS: Let me return to my initial question. Your interest is clearly in abortion. I can understand your concern. But, if you were to answer my original question, what constitutional right would protect the right to abort? It is autonomy. Is it autonomy? … What I’m trying to focus on is to lower the level of generality or at least be a little bit more specific. It used to be a right of privacy. The Court found it in the substantive due-process clause. Let me ask you, can you tell me what do we have now? Does it involve privacy? What is autonomy? It is what?

It was a nice, terse answer from Ms. Rikelman.

MS. RIKELMAN : It’s liberty. Your honor.

Basta cosi.  This line will soon be on T-shirts.

She went on:

It’s the textual protection in the Fourteenth Amendment that a state can’t deprive a person of liberty without due process of law, and the Court has interpreted liberty to include the right to make family decisions and the right to physical autonomy …

Justice Thomas was somewhat disingenuous in asking the question. True. Roe The government was unclear about exactly where it placed the constitutional right at issue, leading to many decades of legal wrangling regarding “shadow rights” as well as “penumbral rights”, “right to privacy” or “right to medical autonomy”.

But Casey As Justice Thomas (who was present at the Court during the case) is certain to know, the Court settled the matter.

Constitutional protection for the woman who decides to end her pregnancy Derives its strength from the Due Process Clause in the Fourteenth Amendment. The Constitution states that the State may not “deprive anyone of their life, liberty or property without due process.” The dominant word in this case is “liberty”.

The Court has recognized the constitutional protection afforded to individual decisions related to procreation, marriage, relationships with children, child raising, education, contraception and other matters. Individuals have the right to be protected from any unwarranted intrusion by the government into fundamental matters such as decisions whether to become a parent or not. [Many citations, omitted]

Or, as Ms. Rikelman said later in argument, “For a State to take control over a women’s body, require her to undergo pregnancy and childbirth with all the risks and life-altering consequences, that comes with it, is a fundamental violation of her liberty.” The preservation of a woman’s freedom to decide until viability is a way for her liberty to be protected while also balancing other interests.

It is up to you to answer this question. It is best to frame it as “liberty”. Casey The way it was framed makes it appear not only plausible but obvious. (And, dare i say it, on the VC it is squarely libertarian). Most Americans would say that they enjoy freedom in the United States to make vital and life-altering decisions such as who and when to start families, what religion and how to sex, whether one should send their children to parochial or public school and other important matters.

My view is that it’s important to keep the framing of this issue in the forefront of an argument. I was impressed by Ms. Rikelman’s efforts.  The constitutional litigation is a great place to frame matters. This was why the case for the right of a person to marry anyone they wanted to gained momentum. It wasn’t a campaign to promote “same-sex marriage,” but rather for “marriage equality”.

FWIW, my personal prediction is that the Court will not overrule Roe and/or Casey, at least insofar as there will be five votes to re-affirm the existence of a due-process-protected right to decide whether to terminate one’s pregnancy. Justice Roberts should be able to convince at least one judge. post-CaseyHis opinion will be joined by other justices. It will affirm the existence of this right, while also removing the viability standard to determine when the State has a countervailing interest. This will allow States greater flexibility in timing their prohibitions. This is just a guess.