The Folly of Roe v. Wade and the Perils of Judicial Activism

Regardless of one’s views on abortion, the making of law by judges is undemocratic and will have serious consequences.

By Spencer Shia

On the 3rd of May, POLITICO magazine leaked a draft majority opinion of the U.S. Supreme Court case Dobbs v. Jackson Women's Health Organization. The opinion, authored by Justice Samuel Alito, seeks to overturn Roe v. Wade and its superseding case, Planned Parenthood v. Casey, which held that the American Constitution protects a right to abortion. This led to fury from the left, spawning myriad protests and op-eds largely attacking the court for reasons of public policy or abstract philosophy. Arguments usually opined that abortion is a necessary component of women’s health, or appealed to notions of bodily autonomy and equality. Whatever one may think about abortion, the role of the judiciary should not be to promulgate policies its members deem good and just. Instead, the judiciary ought to faithfully interpret the law. For better or for worse, the legal rules of the United States Constitution do not generate a right to abortion. In turn, the Supreme Court, whose members swore an oath to uphold the American Constitution, has an affirmative duty to overturn the legally egregious cases of Roe v. Wade and Planned Parenthood v. Casey.

Courts have a duty to merely interpret the law and not legislate for both prudential and principled reasons. A legislating judiciary is inevitably an unpredictable one. After all, the American judiciary is composed of hundreds of members of various predilections. If there was license for judges to promulgate what they feel to be the best policies, different courts and judges would inevitably reach wildly different results. This hurts both litigants and society at large. Litigants will not know on what basis they should present their cases, for judges will rule based on sometimes unknowable and unpredictable personal preferences. This hurts the most vulnerable litigants, who lack the means to afford top legal counsel, who often have a better insight into judicial behavior. Wider society is hurt as well: absent clear, predictable rules for judges to follow and enforce, the law may change arbitrarily and capriciously, upending arrangements, plans, agreements, and contracts. This may all seem abstract, but the harm is very real, for people’s lives, finances, and goals are all in arrangements affected by the law.

As a matter of principle, judicial activism offends the rule of law. The rule of law is necessarily in opposition to the rule of persons; we write laws so that they are consistently enforced, and not subject to the idiosyncratic and arbitrary will of any given and inevitably fallible person. Whatever flexibility and changes in law must be regulated by what the great British jurist H.L.A. Hart termed “secondary rules”. To quote Stephen Sachs, the Antonin Scalia Professor of Law at Harvard Law School, the “law stays the same until it’s lawfully changed.”[1] Whereas judges swear an oath to follow the law, and in the United States “this constitution”, they in turn have an ethical obligation to follow and apply legal rules faithfully. Altering the law in a process exogenous to the secondary rules of the legal rules themselves runs afoul of the basic purpose and function of law, rendering such behavior incompatible with the obligations of the judiciary.

Inevitably, legal realists will argue that courts are composed of fallible people, and that those fallible judges tend to judge with a predetermined outcome. The legal realist argument goes that if judges are legislators that it is permissible, even preferable that judges just legislate. While the legal realists may paint an accurate description of judicial behavior, their prescription of judicial legislation is beyond silly. Indeed, a phenomenon’s existence does not justify it ipso facto. If anything, the descriptive claims of legal realists only highlights the necessity of formal legal doctrine to constrain the behavior of judges. After all, if judges are so prone to shape the law in their image whenever they can, then strict rules that limit judicial discretion are necessary to the good functioning of a legal system.  

As a matter of law, the reasoning of Roe and Casey was poor, and little in the Constitution supplies an alternative legal justification for their holdings. In Roe, the Supreme Court held that the Due Process Clause of the 14th Amendment to the U.S. Constitution guarantees a right to privacy, and that the right to privacy protects abortions in the first two trimesters. This is wrong for two reasons. First, the Due Process Clause is a procedural guarantee; it does not independently guarantee any rights. Reading that no state shall deprive any “person of life, liberty, or property without due process of law”, all it says is that states cannot take away life, liberty, and property without the appropriate legal process. The necessary implication of the text is that if the appropriate legal processes are followed, state governments can deprive all three. In turn, no rights are guaranteed by the Due Process Clause. And whereas the Texas abortion law struck down by Roe was passed into law through legally correct procedures, and enforced in courts of law, it was not a violation of the Due Process Clause.

But even if there was a right to privacy in the Constitution, it is hard to see how that right to privacy protects a right to abortion. Unlike the use of contraceptives in the home, which was the circumstance by which the U.S. Supreme Court first established the right to privacy, having an abortion is mostly a non-private matter. After all, one must go to a physician, often pay that physician (or otherwise enter some contractual arrangement), and have the procedure performed on the abortion-seeker by a likely stranger. But even if the process surrounding the abortion can be considered “private”, one could argue that the fetus is a human being itself. To be clear: this paper takes no position on when a fetus becomes a human being, but that issue is a moral question with debatable answers. If the courts assume that abortion is a purely private exercise, they are taking a contested and arguable moral position. In turn, the courts are making decisions, and indeed overriding the democratic prerogative of many state legislatures under a moral and epistemic haze. If the courts have an obligation to faithfully follow the law, they ought to be sure that the law commands what they think it commands; taking a contested position in a morally thorny debate and calling it “law” defies that principle.

Casey is not much better. It mostly extolls the virtue of stare decisis, that courts should not overturn their own precedent. But precedents have never been and should never be sacrosanct. When Brown v. Board of Education was decided in 1954, desegregating schools in the Deep South, Plessy v. Ferguson, which held that segregation laws were constitutional, had been precedent for 56 years, longer than the 49 that Roe has been on the books. Likewise, other precedents like Lochner and Swift v. Tyson were on the books for decades, but nonetheless rightly overturned by the U.S. Supreme Court. Indeed, one could not expect prior courts to always get the law right, and it would be silly to believe that whatever a court previously decided is always correct.

Perhaps the best arguments for a constitutional right to abortion can be found in the equal citizenship and privileges or immunities sections of the 14th Amendment. While certainly more plausible than the due process or privacy claims, they are nonetheless not clear enough for courts to constitutionalize an unenumerated right and override the democratic process.  

With respect to the equal citizenship argument, the Supreme Court has held that the 14th Amendment protects equal civil rights between the sexes. While they textually ground their argument in the equal protection clause of the 14th Amendment, pioneering research by Professors Akhil Amar and Christopher Green suggests that the guarantee of equal citizenship can be found in the citizenship clause of the 14th Amendment, where it states that all persons “born in the United States are citizens of the United States”. Whereas all persons, irrespective of circumstances of birth, are put into the same category by virtue of birth, the inverse is also true: distinctions which deprive persons the privileges and immunities of citizenship on the basis of birth characteristics are unconstitutional.

The argument for a constitutional right to abortion goes that by forcing women to have children, they are deprived of the ability to equally engage in the political, economic, and social life of the nation. However, this argument has its problems. First, there is no male cognate to abortion, for male contraception is merely prospective. In turn, it is unclear exactly what inequality actually exists; in previous equal citizenship cases on the basis of sex, it was often access to the same thing, whether it be admission to the Virginia Military Institute or access to employment that guided the court’s decision. It is unclear how there is an asymmetrical access to contraception as women can currently access prospective contraception to an extent broadly similar to men. Second, the “unequal access to social, economic and political life” argument is inherently speculative: pregnant women have engaged in all three, as have young mothers. Young mothers and pregnant women have voted, worked, and socialized. And as Justice Amy Coney Barrett noted in the Dobbs oral argument, women who do not wish to have the burdens of early motherhood could often drop off their children in “safe havens” where they are safe from prosecution of child abandonment, and where the children are put up for adoption.

Of course, both of these lines of argument have faced reasonable criticism from liberal commentators, but the point is that it is unclear if, and how much, abortion laws deprive women of equal citizenship. Judges should only decide cases when the facts and the law are clear, and neither the facts nor the law are beyond reasonable contestation here. In turn, it would be in keeping with the judicial obligation of faithfully following the law to defer to the democratic process when the law is amorphous.

The privileges or immunities argument has even less credence than the equal citizenship argument. There is a reasonable case to be made that the 14th Amendment’s protection of “privileges or immunities of citizens of the United States” not only ensures that the states are required to follow the first eight amendments of the Bill of Rights, but also protects a series of commonly-accepted rights like the right to marriage or the right to contract. After all, some reconstruction-era legislators who voted for the 14th Amendment referred to those common law rights in the terms of “privileges and immunities”, and there was a deliberate choice to use the phrase “privileges and immunities” when the drafters of the 14th Amendment: John Bingham and Jacob Howard, knew how to say “the first eight amendments of the Bill of Rights”, as they did in legislative debates. Presuming this legal rule to be true, then one could reasonably argue that the 14th Amendment was designed to evolve and protects commonly-accepted rights arising from social practice, like how the rights to contract and marriage arose in the common law. However, abortion does not rise to that level. Meanwhile, rights to contract and marriage are commonly practiced and commonly accepted: there has been a societal consensus on those rights, whereas a significant minority of Americans oppose abortion in most or all circumstances. The majority of Americans support some restrictions on abortions. Absent a societal consensus required for the constitutionalisation of unenumerated rights, it follows that the 14th Amendment’s privileges or immunities clause does not ensure a constitutional right to abortion.

To conclude, there is no clear basis in the Constitution for the judiciary to uphold a constitutional right to abortion. The courts have a duty to follow the law and avoid judicial activism for both principled and prudential reasons. Whereas there is no good legal reasoning for Roe or Casey, it is necessary and proper that the U.S. Supreme Court overturn those decisions in Dobbs. While a social liberal may bemoan this putative victory for the religious right, I would pose this question to an understandably aggrieved liberal: if we allow judges to be inventive with the Constitution as they were in Roe, what guarantees do you have that judges necessarily achieve the liberal outcomes you want? The American judiciary has a long history of doing just the opposite: regressive and reactionary judicial activism. It was along the same lines of substantive due process, the aforementioned doctrine of using a textually impossible reading of the Due Process Clause which led to the Supreme Court holding, erroneously, in the infamous Dred Scott v. Sandford case that there existed an unenumerated constitutional right to slavery. It was in Lochner v. New York that the same judicial activism led to a three-decade era of judicial invalidation of consumer and workplace safety protections, all without a clear basis in the constitutional text.

Advocates of judicial activism be wary; your prescription may come back to bite you.

Spencer Shia (The Returning Officer) is studying for an MPhil in Late Antique and Byzantine Studies at Exeter College.

[1] Stephen E. Sachs, “Originalism as a Theory of Legal Change”, Harvard Journal of Law and Public Policy vol. 38.