Roe Redux: Is The Viability Test Still Viable as a Constitutional Doctrine?

#SCOTUS

Below is my column in The Hill on the argument in Dobbs vs. Jackson Women’s Health Organizationthe Court’s most watched case this term on abortion rights. The oral argument is scheduled for December 1st, the same week that the United States Court of Appeals for the Fifth Circuit will hear an expedited appeal over the even more stringent Texas abortion law.

Here is the column:

The Supreme Court is on the eve of arguments in what could be the most consequential abortion case in decades, Dobbs vs. Jackson Women’s Health Organization. For years, many analysts overhyped cases as possible death knells for Roe v. Wade. Despite annual columns questioning such apocalyptic predictions, which often seemed more political than legal, the granting of Dobbs led me to write my first “this could be it” column.

Dobbs has everything that you would need for a Roe-killing case. That does not mean the court will do so, but it could substantially reduce Roe’s hold over states.

The more interesting question is not whether Roe will go but whether “viability” is still a viable basis for limiting states on abortion legislation.

There is no constitutional question that has left more lasting, continuing divisions in society and on the court. This case has attracted the third highest number of briefs in the court’s history (after leading same-sex marriage case in Obergefell v. Hodges and the ObamaCare ruling in NFIB v. Sebelius); the majority supports Mississippi in its ban on abortions after the 15th week of pregnancy.

Forty-eight years ago, the court held in Roe that “the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.” The court embraced a trimester system of escalating state authority, with little such authority in the first trimester but considerable authority — including possible bans — in the third trimester when a baby is viable outside of the womb.

Then, in 1992, a deeply fractured court upheld the “essential holding” of Roe, but a plurality dispensed with the trimester approach in favor of the current “viability” standard. Under this approach, a state could protect the “potentiality of human life” through legislation once a fetus has reached viability “except where it is necessary … for the preservation of the life or health of the mother.” That line was viewed as around 23 or 24 weeks. (The Washington Post confirmed that the United States is one of only seven out of the world’s 198 countries that allow for abortions after the 20th week of pregnancy.)

Since then, abortion has remained a matter of deep divisions. Indeed, the late Justice Ruth Bader Ginsburg was a critic of Roe, seeing it as too sweeping in supplanting state laws. She later blamed the case for reversing the trend toward more pro-choice states.

To uphold Roe, the court likely will require more than the usual arguments of stare decisis, the doctrine that the court should generally stand by its precedents. Pro-choice members and advocates have insisted that Roe is a “super precedent” that cannot be set aside like other cases. (Worth noting is that senators denouncing even the thought of overturning Roe as judicial activism have demanded overturning cases like Citizen’s United and Heller.)

However, putting aside the very existence of such a special category of “super precedent,” the court has never found terra firma on abortion. For roughly 50 years, it issued a litany of plurality or 5-4 decisions. For example, in 2000, a 5-4 majority struck down a partial-birth abortion law in Stenberg v. Carhart but, two years later, voted 5-4 to uphold a ban on partial-birth abortion.

Today, the country remains deeply divided. Polls show strong support for Roe in principle but also support for limiting it. For example, a new poll out of Marquette University Law School showed 2-1 support for Roe, but a greater number of respondents (37 percent) supported the 15-week limit in Dobbs than opposed it (32 percent).

This term the court was presented with two pre-viability challenges. After Dobbs was accepted with its 15-week limit, advocates sought to enjoin a Texas law that banned abortion after just six weeks. The court ruled 5-4 to allow the Texas law to be enforced. The Biden administration returned to ask for an injunction from the same justices a few weeks later and for a ruling on the statute. As expected, the justices did not enjoin the law but they could address it, either by putting it on the docket for a ruling on the merits or rendering it moot in a decision under Dobbs. In the meantime, this coming week the United States Court of Appeals will hear an expedited appeal on the Texas law in Whole Woman’s Health v. Jackson.

Abortion under ancient laws was treated as a criminal offense, and that status remained when our Constitution was written. The line drawn under many of these early laws was not viability but the “quickening.” In writing Roe, Justice Harry Blackmun noted that “before ‘quickening’ — the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy — was not an indictable offense.” The Mississippi law put the line along that earlier quickening stage.

Pro-choice advocates hope Chief Justice John Roberts and Justice Brett Kavanaugh can again be lured to the center to vote with the three liberal justices. Arguments over “super precedent” may have traction with Roberts, who is known as an institutionalist and incrementalist, uneasy about the court ordering transformative changes in society. Reversing Roe is the ultimate sticker-shock moment for Roberts. Yet, it was Roberts who wrote in Citizens United v. Federal Election Commission (2010): “We cannot embrace a narrow ground of decision simply because it is narrow; it must also be right.”

Some justices are already on record questioning the constitutionality basis for Roe. Some of these justices do not agree with the sweeping privacy “penumbra” found in Roe. While he often sides with Roberts, Kavanaugh also said in Ramos v. Louisiana (2020) (a non-abortion case) that the court cannot maintain a precedent that is “grievously or egregiously wrong.” In the same case, Justice Neil Gorsuch wrote: “The doctrine of stare decisis does not mean, of course, that the Court should never overrule erroneous precedents.”

So how viable is “viability” if a majority of justices do not see a constitutional privacy basis for the right to abortion?

First, these justices will have to decide whether Roe was flawed from the start or whether, as argued by some, such views of unconstitutionality must be set aside due to historical reliance. Then, unless they overturn Roe entirely, they will have to return to the maddening task of drawing a line between the relative authority of a woman and the state — a line that has wavered between the quickening and viability.

Of course, the court could reaffirm Roe, which — with a six-conservatives majority — would likely mean Roe will remain good law for the foreseeable future. However, it also could abandon viability, or otherwise increase the right of states to place limitations on abortions in the pre-viability stage.

Justice Ginsburg once noted that “it’s hard not to have a big year at the Supreme Court.” That is true — but Dobbs would make for a historic year, if the court were to find the one thing that has long evaded it on reproductive rights: Clarity.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.

150 thoughts on “Roe Redux: Is The Viability Test Still Viable as a Constitutional Doctrine?”

  1. There is another option for deciding this case that makes the most sense Constitutionally:

    “Roe and Casey will expire as Court Precedents effective Mar 31, 2025. Under our Constitution, it is not for the Courts to make policy, especially on the most impactful controversies of the times. Those policy decisions belong to our Congress and State Legislatures, and to the People who elect representatives to legislate on their behalf.”

    “The grace period for replacement of Roe and Casey allows for one midterm Congressional election cycle and one Congressional/Presidential election cycle, sufficient time for policy options to be thoroughly debated in public, and the People to elect a combined Congress and President. A harmonized, national law defining abortion rights and responsibilities will be better than having red states and blue states with incompatible policies — where red state women will travel to blues states for abortions. A national law passed in a bipartisan manner posits a way to resolve the controversy and move forward to other pressing issues.”

    “Should Congress and President fail to pass and sign a national abortion law by the deadline, they will have forfeited to the States power to legislate exclusively on this issue for the following 10 years.”

    “The Supreme Court will uphold this return to legislative primacy over abortion policy, to our schedule for the transition, and uphold the established understanding of legislative power sharing under federalism, in any case brought before us.”

    “This decision corrects the major Constitutional process-defect lurking behind Roe and Casey, which was for Courts to relieve Congress of its responsibility to resolve the most contentious legal issues. In today’s decision, we will not err yet again by dictating an opposing policy letting Congress off the hook. It is up to Congress to take up its responsibility as representatives of the People, and for the People to once again feel they have the final say in this matter as they cast their votes in the next two cycles. Let the public debate of policy options begin.”

  2. There sure are a lot of people on this blog who have a Medieval view of women — a view that is lower than: “barefoot and pregnant.”

    Given their rejection of the Enlightenment, their disgusting view is unsurprising.

    1. There sure are a lot of people on this blog who have a Medieval view of women — a view that is lower than: “barefoot and pregnant.”
      ****************************
      Which women? The ones in utero or ex utero?

        1. Really, why not an actual? Would you interrupt the inexorable flow of life of a newborn simply because it cannot feed itself, go off into the prairie and secure a buffalo or till a field into wheat or other grain? So, my being Enlightened in your parlance means I can adopt the philosophy that I can stop that life from becoming? WOW!

  3. Democrats are absolutely terrified. Terrified that the abortion issue could be decided by the American people through the democratic process instead of by 9 unelected Ivy Leaguer’s in robes. So they cling to the past, terrified of change. Comforted by the wet spots that are the penumbras of their nocturnal emanations.

    1. Epstein ,

      9 unelected Justices is a feature not a bug of our judicial system. I subscribe to Turley’s suggestion that the number of judges should be increased slowly over time, but I doubt that they will be selected from law schools at inferior colleges and universities. Only the elite can rise to the SC though it sticks in your craw!

      1. Yes, Democrats really are terrified. Terrified that the abortion issue could be decided by the American people through the democratic process. So terrified that they will do anything to stop it.

        1. The American public favors the right to choose at an increasing rate as time goes on. Democrats are scared of an activist court overruling public sentiment, actually.

          1. That is exactly backwards. The Supreme Court’s abortion jurisprudence PREVENTS the American people from resolving the issue through the democratic process. Roe v. Wade and its progeny are among the most divisive cases in the last 50 years. Left to their own devices, the American people would have reached a workable compromise many years ago. If the American people were allowed to work it out as you suggest, then the issue would be behind us. The Democrats are terrified that that could actually happen. They are terrified of the democratic process. They are terrified of change.

        2. You and Karen watch the same alt-right media sources that preach the “Us vs. the Left, the Libs, the Dems”, as if devotees of Trump and alt-right media are in the majority, and that your views are mainstream with the support of most Americans. This is all lies. The majority of Americans, not all of whom are Democrats, support a woman’s right to choose. Sorry, but you Trumpsters have always been in the minority: he lost the popular vote in 2016, he never garnered even a 50% approval rating in 4 years’ time, and he lost again in 2020. So, “Democrats” aren’t “terrified” of anything. The fact is, women WILL get abortions regardless of what the SCOTUS does. Wealthier women will get safe, medical abortions, even if they have to go to Canada to get them. Poorer women will get back-alley or self-induced abortions, just like what happened before Roe v. Wade, and some will die, unnecessarily, because they won’t go for help if they get an infection, a perforated uterus or vagina, or other complications.

          1. You and Karen watch the same alt-right media sources….

            You either are clairvoyant or have anencephaly. I dont believe you have clairvoyant powers, and anencephaly has a very high prevalence in women. womyn, so I will go with the latter in characterizing your Carnac the Magnificent powers

    2. Most Americans support abortion being legal for part of pregnancy and illegal for part of pregnancy, just like Roe. If you’ve noticed nocturnal emanations, they are yours.

      1. For fifty years, Roe and its progeny have stood between the American people and the resolution of the abortion issue through democratic means. The decisions are profoundly anti-democratic. Worse yet, the decisions are a wet spots on the constitution that spread from the penumbras of activists’ nocturnal emissions. The Democrats are terrified that the resolution could be left to the American people. Absolutely terrified. Let the people decide.

        1. When are you going to get it through your thick skull that the propaganda outlets you rely on for your daily affirmation do not speak for the views, values or beliefs of most Americans? They preach drivel about speaking for “the American people”, which is not true. “The people” have no right to “decide” about what is or is not protected by the Constitution.

          1. Democrats are terrified. You can see it in their words. In their increasingly hateful diatribes against their political opponents. You can see it in their deeds. In their increasingly desperate mandates imposing their rule on the vast unwashed. Yes, they are terrified that they are losing their grip on political power. Terrified. And they will do anything to keep that power.

            The people have no right to decide. That sums up the Democrat view nicely. But Roe and its progeny are a vast wet spot on the constitution. A wet spot expanding from the penumbra of activists’ emanations. Justice Douglas’ passage will live in infamy among the most misguided in the long history of the Supreme Court.

            Democrats are terrified that, after fifty years, the wet spot is drying up and the sheets are going to the laundry. That abortion could be decided by the American people through the democratic process. Oh wait. The American people have no right to decide. Interesting, isn’t it, that Democrat values have shifted so dramatically as they desperately cling to power?

            Another funny thing is that the Democrats presume to speak for the American people. But they are terrified that the American people could actually decide. Speaking personally, I don’t have especially strong views on how the abortion debate should be decided. There are important interests at play on both sides of the debate.

            But what is critically important is that the American people have the right to decide through the democratic process. Their solution will be far wiser, more nuanced, any ultimately more enduring than policy decisions imposed by activist federal judges.

            Yes, Democrats are terrified. You can see it in their eyes.

      2. You talk about trying to equalize outcomes rather than make people equal under the law. However, on another subject you act like a racist and are perfectly fine knowing that abortion kills so many black babies as do the crime ridden cities that are run by Democrats of your persuasion.

        Whether you are under the generic anonymous or the green anonymous where you try to uplift your personality you are the same arrogant hypocrite who doesn’t give a damn about normal American people no matter what color they are.

  4. The 9th Amendment is about the right if privacy. No state has the right to examine our rubbers to see if there are holes in them.
    The right of privacy means pork em if ya gottem.

    1. The 9th Amendment essentially means the U.S. Constitution was designed to EXPAND individual liberties to the maximum degree, never meant to take away rights. It also recognizes rights not named in the Constitution are also protected, since it would be impossible to list every right and freedom. Alcohol Prohibition and more recently Eminent Domain was the only time the federal government took away rights (instead of expanding individual rights) and it was a complete disaster for the nation.

      During Jim Crow, some local and state officials illegally exercised the 10th Amendment to violate the rights of African-Americans and other minority groups similar to some third-world nations. The 9th Amendment makes that interpretation illegal (unconstitutional).

      The American Oath of Office actually requires local, state and federal officials (and their private contractors) to protect the constitutional rights of all persons within their jurisdiction – the opposite of Jim Crow era local officials. If that local or state official is disloyal to their oath of office, the federal government can check & balance those disloyal officials. Congress can also intervene under it’s Article I powers.

  5. The 10th Amendment is preceded by the 9th Amendment – which means the 10th Amendment can’t be used to violate other constitution rights. Jim Crow laws (state laws) that violated rights were always illegal under the U.S. Constitution. States had no such authority to abuse African-Americans. State officials also swear an Oath of Office to follow the U.S. Constitution.

    Today’s state marijuana legalization laws is an example of a legal interpretation of the 10th Amendment, since nobody’s other constitutional rights are being violated in the process.

    1. Not all African-Americans (i.e. 1/2 Americans), not even people of black, were denied equal rights after colored people (i.e. low-information attribute). Elective abortion (e.g. for social justice, progress, taxability), diversity laws (e.g. racism, sexism including affirmative discrimination), were always illegal under The Constitution that does not exercise liberal license to indulge diversity [dogma] (i.e. color judgment, witch hunts, warlock trials).

    1. Yes, elective abortion of virginal life for fair weather is not recorded in The Constitution. Roe, Roe, Roe your baby down the river Styx is an artifact of social progress.

        1. All American: pro-Life, Liberty, and the pursuit of Happiness, under a constitutional framework, less the Twilight Amendment (e g. diversity, inequity, and exclusion; political congruence; the wicked solution).

  6. Between the drop in fertility rate and proaborts killing babies, we may not have human life anywhere soon. At least this is good news for the planet

    Growing share of childless adults in U.S. don’t expect to ever have children

    “Birth rates in the United States dropped during the COVID-19 pandemic amid the twin public health and economic crises, lending evidence to predictions from early on in the outbreak that economic uncertainty might trigger a baby bust. This continued the downward trend in U.S. fertility rates, which were already at a record low before the pandemic began”.

    Gallup Poll
    Nov 19, 2021

    https://www.pewresearch.org/fact-tank/2021/11/19/growing-share-of-childless-adults-in-u-s-dont-expect-to-ever-have-children/

    1. Infowars store has some Save the Frogs T shirts 4 sale last I heard & I know the sale great water filters.

      And what was that Scripture for young guys? Better to spill your seed in the belly of a whore than end up humping Gay Frogs? 😉 But a large mouth bass, oh, never mind. lol

      More & more young people a showing no interesting in forming family units has been the research I’ve been seeing.

      ************

      Video + More……..

      *******

      One of the biggest stories MSM uses to label Alex Jones as a conspiracy theorist is that there are chemicals in the water turning the frogs gay.

      Well, watch the proof straight from the mouth of a Berkeley scientist as he shows you actual frogs who are having their gender altered due to exposure to the herbicide Atrazine.

      https://www.newswars.com/proof-gay-frogs-are-real/

        1. ” avoid vices ”

          That’s always the Rub.

          Here’s the real way it appears to fools it works:

          A successfully guy, in his nice car, on his way home one night gets hung in traffic. A homeless bum was begging money out his window.

          Guy tells the Bum if I give you money you’ll just spend it on booze or gamble it away. The Bum says: I gave up booze & gambling.

          The guy then says: If I give money you’d just spend it on drugs & hookers then. The bum says: I don’t do drugs or frequent hookers either.

          The guy say I’ll give you money but 1st you have to come home & have supper with my wife & I & explain to her how you became a loser. lol

          Old joke from Satan …. I changed it up a small bit.

  7. I think we invest an enormous amount of verbiage and angst on an issue which, to me, can be easily decided. On Constitutional grounds alone–which is where SCOTUS’ focus should consistently be–abortion falls within the purview of the States, not the federal government. Clarity. Roe must be overturend on this basis alone. No need for all the emoting and caterwauling. Rely on the Constitution as written–not an elusive, ever changing, arbitrary “lliving constitution” which invaraibly leaads us into murky waters. Frankly, the individual States should nullify any SCOTUS opinion which violates the Constittution or that otherwise violates the State’s 10th amendment authority. So simple. It shouldn’t be about illogical feelings. It should be about law.

    1. Read the 17th Amendment: not all rights are spelled out specifically in the Constitution. You’ve been listening to alt-right media about this.

      1. Yes, the right to elective abortion, diversity [dogma] (i.e. color judgments), etc. is codified in the Twilight Amendment.

      2. Also, read the Abortion Clause. Alt-Right media has also suppressed knowledge of it, just as it has with the, ahem, Seventeenth Amendment.

      3. YOur reply is dismissive and arbitrary. So, if I listen to left-wing hacks I’d be properly informed? Please…. I understand the 10th amendment, i.e. those powers not explicitly delegated to the federal government reside with the individual States. Source: Hames Madison. Left, right or middle, I’m relying on our framers, not contemporary misinterpretations of original meaning.

        1. liberals think what you do in real life is irrelevant for determining one’s values or character – only hashtags and slogan-chanting count.

      4. The 17th Amendment??? deals with the election of Senators by the States. It does not somehow show that not all powers/rights are specifically spelled out in the Constitution?

    2. That’s true, The Constitution, less the Twilight Amendment, does not codify murder, or slavery, for that matter, or diversity [dogma] (i.e. class-based judgments including racism, sexism) generally. Elective abortion is an ageist choice that denies life for light and social progress, medial progress, or climate mitigation. It is also a strawman argument, since reproductive rites are, with rare exceptions, not unrestricted even in liberal societies. The viability dogma of the Pro-Choice religion is merely a semi-technical apology to avoid the truth that a woman and man have four choices, and still six weeks for a wicked solution. Baby steps to resolve a hard problem where demos-cracy: People/Persons, Posterity/babies (fetus for social distance) can be aborted in darkness.

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