President Donald Trump’s choice of federal appellate Judge Brett Kavanaugh to fill the vacancy on the U. S. Supreme Court created by the retirement last month of Justice Anthony Kennedy is causing fear for those who support the 45-year-old precedent of Roe v. Wade as settled law establishing a woman’s right to abortion that the ruling may be in jeopardy, while encouraging those who view Roe as an aberration that should be eradicated from the annals of the law.
The 53 year-old nominee, currently a federal appellate court judge based in the District of Columbia, will, if confirmed by the Senate, bring a solid conservative track record to the tribunal, which leads to both the fright as well as fervor that the Roe ruling may be in jeopardy.
But while that dread clashes with delight, the high court has provided a blueprint for addressing and, perhaps, overruling the precedent of the Roe case.
Its ruling at the end of its 2017-2018 term in Janus v. AFSCME, allowing public sector union members to refuse to pay dues, overturned a precedent 41 years earlier, nearly as old as Roe, that had rejected that claim. The majority opinion, written by Justice Samuel Alito for the five-member majority, offered six justifications for reversing long-established precedent.
The half-dozen factors include whether the prior ruling involved constitutional law, where precedent is deemed “weakest”; whether it was “wrongly decided”; the “quality” of its “reasoning”; the “workability” of the doctrine; the “different legal” rulings and other developments that have transpired over the years; and whether individuals carry out their daily activities in “reliance” on the ruling.
This multipronged analysis can be easily adapted by reversal-inclined jurists to dismantle the Roe ruling:
- It was a constitutional law decision, where precedent is “weakest.”
- None of the justices on the court now were part of the Roe ruling but several have passed upon post-Roe issues, including one last month striking down a California law requiring anti-abortion clinics to inform patients of the availability of free or low cost abortions in National Institute of Family and Life Advocates v Becerra, and several jurists throughout the country have expressed, some in no uncertain terms, that Roe was “wrongly decided,” (an “abomination” declared one federal appellate court judge who was on President Trump’s not-so-short 25 person list of potential appointees), which is a catch-phrase meaning they disapprove of it.
- Even some of those who support the outcome — a women’s right of choice — have questioned its premise, an unexpressed constitutional right of privacy under the Ninth Amendment. Current Supreme Court Justice Ruth Bader Ginsburg, for example, has stated that the ruling should have been based on a denial of equal protection under the post-Civil War 14th Amendment, while constitutional scholar of Harvard Law School Laurence Tribe has joined the small but influential chorus of those who agree with the result in Roe but not the reasoning of Justice Harry Blackmun of Minnesota, who authored the majority opinion for the tribunal.
- The feasibility of the trimester concept articulated in the Roe decision, regulating abortions based on the duration of the pregnancy, has raised some feasibility problems, throwing its ”workability” into question,
- The “different” legal rulings, including some by the High Court itself over the years have imposed restrictions on the right established in Roe, including limited pre-abortion waiting periods, parental consent, and other inroads on the Roe doctrine.
- Finally, it could be asserted, especially by anti-Roe jurists, that a vast number of individuals have not imposed “reliance” in their daily lives on the right to abort a fetus and, if they have, they have up to nine months to shed that reliance.
Those cringing at, or cheering for, abolition of the Roe decision can utilize this roadmap to determine if its destination results in reversal or re-affirmation of that precedent.
Marshall H. Tanick is a Twin Cities constitutional law attorney and historian.
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