Troubling Features Of SCOTUS Decision Overruling Roe v. Wade - Salman Khurshid Writes

The Supreme Court's reversal of Roe v Wade has been received with widespread consternation and dismay by a large number of Americans whilst others have proclaimed victory, (not for women though! ). Alito, J., delivered the opinion of the Court, in which Thomas, Gorsuch, Kavanaugh, and Barrett, JJ., joined. Thomas, J., and Kavanaugh, J., filed concurring opinions. Roberts, C. J., filed an opinion concurring in the judgment. Breyer, Sotomayor, and Kagan, JJ., filed a dissent.

Here, in India, we have comforted ourselves with the understanding that our statutory provisions and judge-made laws provide ample scope for a woman to choose as an autonomous citizen. Far-reaching as the implications of the judgment for all women, particularly the poor and black women are likely to be, the reasoning by which the majority arrived at overruling the progressive law that has held the ground for two decades, has troubling features.

The Court summed it up as "power arrogated being returned to the people". Two main arguments that the Court considered were: (a) nothing in the history of the US could be said to have supported people's approval of abortion as a right, and (b) stare decisis principles justified overruling Roe v Wade, particularly as the case had itself violated it in departing from a series of judgments that pointed the other way.

The Dobbs judgment is an interesting point-by-point debate between the Opinion and the Dissent. But before adverting to that, one might usefully look at Ronald Dworkin's defence of the Roe v Wade already in print when an earlier attempt to have it overruled was underway in Webster v Reproductive Health Services. Dworkin had relied heavily on the 'unenumerated rights' of the Fourteenth Amendment due process related to reproductive health such as contraception, sterilisation, marriage, etc.

He also found that according to critics, the right to abortion is "judge-made" and has "little or no cognizable roots in the language or design of the Constitution";or that the right has "no moorings in the text of our Constitution or in familiar constitutional doctrine," and cannot be sustained by "the interpretive tradition of the legal community";or that the right does not exist because the subject of abortion is "one upon which the Constitution is silent." The argument that rights that did not manifest themselves when the due process clause was introduced were answered by the desegregation of schools having had to wait till Brown v Board of Education.

On other unenumerated rights, although the Court in Dobbs clearly left them untouched, it is useful to note Dworkin's position:

'Judges should seek to identify the principles latent in the Constitution as a whole, and in the past judicial decisions applying the Constitution's abstract language in order to enforce the same principles in new areas and so make the law steadily more coherent.'

Interestingly, the Court in the present matter consciously rejected abortion as an unenumerated right amongst privacy rights, without directly casting aspersions on the other similar judge-declared rights. Although it did observe that "In interpreting what is meant by "liberty," the Court must guard against the natural human tendency to confuse what the Fourteenth Amendment protects with the Court's own ardent views about the liberty that Americans should enjoy", the Court took the aid of additional arguments discussed below to fortify its decision to overrule Roe v Wade.

Dworkin's principle argument hovers around the point of whether a foetus is a constitutional person and if so from what stage? Reiterating the Roe reasoning, he proceeds on the assumption that a foetus is not a Constitutional person till it is born and can be said to have consciousness, and therefore not entitled to equal rights with other persons.

"Even though a fetus is not a constitutional person, it is nevertheless an entity of considerable moral and emotional significance in our culture, and a state may recognize and try to protect that significance in ways that fall short of any substantial abridgement of a woman's constitutional right over the use of her own body. A state might properly fear the impact of widespread abortion on its citizens' instinctive respect for the value of human life and their instinctive horror at human destruction or suffering, which are values essential for the maintenance of a just and decently civil society. A political community in which abortion became commonplace and a matter of ethical indifference, like appendectomy, would certainly be a more callous and insensitive community, and it might be a more dangerous one of all."

Roe v Wade, of course, chose to consider at which stage of development the foetus, once viable and upon 'quickening', is a constitutional person the entire paradigm changes. There are now two persons whose rights have to be balanced. Yet this balancing is unique in its constraints as it concerns the distinguishing of one life. Furthermore, the foetus as a constitutional person would entail looking at discriminating legislation as 'suspect' and 'compelling' reasons would be required to uphold it. However, this aspect becomes theoretical, given that the abortion is permissible only till the foetus becomes viable at twenty third or twenty fourth week. That the woman concerned should have sufficient opportunity to consider whether she wants to keep the child or seek abortion is satisfied by then, leaving her in control of her procreative decision.

The judgment in Dobbs v Jackson Women's Health Organization ends with a far-reaching proposition:

Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their representatives.

The concept of returning authority to the people might be critical if Indian courts were to accept that logic and apply it to our constitutional jurisprudence. The Keshavanand Bharti verdict that introduced the concept of 'basic structure of the Constitution' has become a bulwark against amending the Constitution in a manner that would change its essential features. Although lawyers who had grown up on concepts of Parliamentary supremacy and sovereignty of people had initially rejected the idea and the Supreme Court was briefly persuaded to assemble in a larger Bench of 15 judges to review the judgment, the pursuit was given up and over the period opinion changed radically to support the Basic Structure.

But just as Dobbs decided that critical moral and ethical decisions should not be handled by courts but left to people and their representatives, amendments to the constitution that presides over the lives of the citizens too should be left to them and their representatives. This would bring down the barriers that prevent majoritarian politics overwhelming rights and the very idea of constitutionalism familiar to us. But of course, it is possible to distinguish moral and ethical notions based on individual choice and a Rawlsian position of justice on fundamental principles of governance.

The US Supreme Court had essentially relied on three arguments to overrule Roe v Wade: firstly, that the history and traditions of the country did not support abortion rights. In the survey of the past, it flagged the criminal attributes of abortion. Secondly, that Roe v Wade was itself a questionable precedent and Casey wrongly followed it on stare decisions. Thirdly, proper understanding of stare decisis required the overruling.

On the first, the Court held that '[T]he Due Process Clause of the Fourteenth Amendment….. has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be "deeply rooted in this Nation's his- tory and tradition" and "implicit in the concept of ordered liberty." Washington v. Glucksberg, 521 U. S. 702, 721 (1997) (internal quotation marks omitted). The right to abortion does not fall within this category.'

On the second, to question it as a precedent the Court held, "Roe's failure even to note the overwhelming consensus of state laws in effect in 1868 is striking, and what it said about the common law was simply wrong. Relying on two discredited articles by an abortion advocate, the Court erroneously suggested—contrary to Bracton, Coke, Hale, Blackstone, and a wealth of other authority—that the common law had probably never really treated post-quickening abortion as a crime. See id., at 136 ("[I]t now appear[s] doubtful that abortion was ever firmly established as a common law crime even with respect to the destruction of a quick fetus"). This erroneous understanding appears to have played an important part in the Court's thinking because the opinion cited "the lenity of the common law" as one of the four factors that informed its decision."

Finally, the Court examined the cover of stare decisis sought by pro-abortion proponents of Roe. It said : "Casey, in short, either refused to reaffirm or rejected important aspects of Roe's analysis, failed to remedy glaring deficiencies in Roe's reasoning, endorsed what it termed Roe's central holding while suggesting that a majority might not have thought it was correct, provided no new support for the abortion right other than Roe's status as precedent, and imposed a new and problematic test with no firm grounding in constitutional text, history, or precedent. 

Casey also deployed a novel version of the doctrine of stare decisis. (See infra, at 64–69). This new doctrine did not account for the profound wrongness of the decision in Roe, and placed great weight on an intangible form of reliance with little if any basis in prior case law. Stare decisis does not command the preservation of such a decision"

The dissent was powerful:

"We start with Roe and Casey, and with their deep connections to a broad swath of this Court's precedents. To hear the majority tell the tale, Roe and Casey are aberrations: They came from nowhere, went nowhere—and so are easy to excise from this Nation's constitutional law. That is not true. After describing the decisions themselves, we explain how they are rooted in—and themselves led to—other rights giving individuals control over their bodies and their most personal and intimate associations. The majority does not wish to talk about these matters for obvious reasons; to do so would both ground Roe and Casey in this Court's precedents and reveal the broad implications of today's decision. But the facts will not so handily disappear. Roe and Casey were from the beginning, and are even more now, embeddeding core constitutional concepts of individual freedom, and of the equal rights of citizens to decide on the shape of their lives. Those legal concepts, one might have gone far toward defining what it means to be an American. For in this Nation, we do not believe that a government control- ling all private choices is compatible with a free people. So we do not (as the majority insists today) place everything within "the reach of majorities and [government] officials." West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 638 (1943). We believe in a Constitution that puts some issues off limits to majority rule. Even in the face of public opposition, we uphold the right of individuals—yes, including women—to make their own choices and chart their own futures. Or at least we once did.'

Although the dissent does not say so, it follows the Dworkin model of judicial reasoning. History has a role but not so much raw historical events but institutional history subjected to an interpretative exercise. Salient application of principles about freedom and equal respect for persons, especially women, in the exercise of rights of most intimate nature are according to Dworkin to be found buried deep in the Constitution and are enumerated as judge-made law. This approach ensures that the constitution remains live and dynamic, responsive to the demands of changing times, not frozen in time. Yet that does not mean that every generation of judges are free to read their preferred view of social mores into the constitution, as the Supreme Court majority opinion seems to have done in Dobbs.

Dworkin's thesis is described as the Rights Theses, the interpretative model distinguished from the positivist thesis, and the integrity thesis. For integrity, Dworkin mentions two main domains: adjudication and legislation:

'The most obvious practical role of integrity is in the domain of common law adjudication, where judges are required to interpret the law in ways that would strive to make the law as morally coherent as possible.'

In other words, identification of a prevailing moral principle that transcends time and space followed by its application, perhaps extension, to a new set of facts to underscore a coherent picture of the law. In a sense, the stare decis does that in a limited sphere but understood properly provides the ground for the application of principles so entrenched, to new facts. Thus according to law, propositions of law are true if they figure in or follow the principles of justice, fairness and procedural due process, which provide the best constructive interpretation of the community's legal practice. This reflects the reasoning in Roe v Wade as indeed the privacy cases that followed that judgment.

Dworkin's The Law's Empire that deals with the idea of integrity lays down the path for the interpretative exercise, summed up as, 'The process of constructive interpretation is made up of three analytical stages: (1) Pre-interpretive stage, (2) Interpretive stage, (3) Post-interpretive stage. In the Pre-interpretive stage, a participant identifies the rules and standards that constitute the practice. Then, in the interpretive stage, the interpreter settles on some general justification for those elements identified at the pre-interpretive stage. At the post-interpretive stage, the participant adjusts his sense of what the practice really requires so as to better serve the justification he accepts at the interpretive stage.

Of the three stages, the interpretive stage is the pre-eminent. The proposal must satisfy two dimensions: (1) it must be consistent with the data identified as constituting the practice at the pre-interpretive stage; (2) he must choose a justification that he believes shows it in the best light.'

Clearly, the Dworkin method would have given a different answer to the question in Dobbs. Furthermore, on the Court's own understanding of stare decisis overruling Roe v Wade required the Court to conclude that it was clearly wrong.

(The author is a Senior Advocate, Supreme Court of India)