Vol. 16 No. 3 (March, 2006) pp.189-194
WHAT ROE v. WADE SHOULD HAVE SAID: THE NATION’S TOP LEGAL EXPERTS REWRITE AMERICA’S MOST CONTROVERSIAL DECISION, by Jack M. Balkin (ed). New York: NYU Press, 2005. 304pp. CLOTH. $29.95. ISBN: 0-8147-9918-3.
By Matthew E. Wetstein, Political Science, Delta College. Email: mwetstein [at] deltacollege.edu.
Reading Jack Balkin’s (Knight Professor of Constitutional Law at Yale Law School) edited book, WHAT ROE v. WADE SHOULD HAVE SAID, conjures up thoughts in the reader, like “darn, I wish I had thought of that.” The basic thrust of the book is to pose the following question to some top law school experts: given a chance to write the opinion in ROE v. WADE on the basis of 30 years of experience, but only relying on what was at hand for the Supreme Court justices at that time, how would you have written an opinion in the case? The answers come in the form of eleven separate opinions (Balkin has stacked his hypothetical court in ways that Franklin Roosevelt could not). The result is a fascinating collection of “opinions” authored by some first-rate scholars, and a 7-4 vote that tracks well with the actual holding in ROE (p.xi). The result also features a set of self-revelatory essays at the end of the book, highlighting the continuing political dilemma that abortion presents, even for the best legal minds.
My review is focused on three themes: 1) the opinions delivered by the participants, 2) the tone and quality of the arguments, and 3) the epistemological question that highlights the book’s attractiveness to many but its weakness to some. As an academic exercise in imaginative constitutional jurisprudence, the book succeeds, and it might be useful for those interested in teaching competing theories of constitutional interpretation or a unique kind of moot court experience. In general, the tone and quality of argumentation is solid, although I have some reservations about one opinion in particular. It is the third element of the exercise that raises fundamental questions about the entire enterprise undertaken here. Let me put the question bluntly: can a collection of law school professors really engage in the construction of an opinion that does a better job than Justice Blackmun’s, especially in light of the fact that it is physically impossible to replicate the judicial and political context?
The range of mock opinions presented in this book take several different tacks. The majority and several concurring opinions attempt to do a better job of explicitly arguing the constitutional grounds for abortion, either through the liberty interest found in the 14th Amendment’s Due Process Clause, or via the Equal Protection Clause. The majority opinion advanced by “Chief Justice” Balkin maintains that the Texas and Georgia abortion laws in question violate a woman’s liberty and equality interests. Surprisingly, however, the liberty interest is not grounded in the Court’s prior precedents dealing with [*190] marriage, procreation, and contraception. As Balkin (40-41) puts it: “If a woman becomes pregnant and the state prevents her from obtaining an abortion, it forces her, against her will, to become the parent of a child, an event that will have consequences not only during the course of her pregnancy but for the rest of her life.” In terms of equality, Balkin maintains that the paternalistic nature of abortion laws perpetuates the subordination of women as a class of people, abrogating the spirit of equal protection found in the Constitution (pp.44-45). The beauty of “Chief Justice” Balkin’s majority opinion comes in its decision to reject the temptation to draw a bright line between when the state’s compelling interest in protecting the fetus becomes operative and when it infringes the liberty and equality interests of the woman. Thus, Balkin refuses to do what Justice Blackmun did in presenting the trimester framework. Instead, he writes what he thinks ROE should have said:
A line must be drawn at some point to enable the state to express its sincere and legitimate interest in the human potential of the fetus. But the line must not be drawn so early as to effectively extinguish the constitutional right to choose. There is no magical formula for demarcating such a line with mathematical precision. The balance between the competing factors is essentially legislative, and must be drawn by legislatures themselves (p.53).
According to Balkin, what ROE should have done is to identify a constitutional right to abortion grounded more clearly in liberty and equality interests, but allow legislatures to set a statutory time limit beyond which abortion could be prohibited. According to Balkin, this time period should be long enough for a woman to contemplate the “difficult moral issues” presented by abortion, consult with friends, family, and medical practitioners, and should allow enough time for travel to an abortion provider (pp.53-54). Some would say this is an improvement on Blackmun’s trimester approach, yet envelopes much of what Blackmun was trying to do in ROE. It is forceful in stating the right to an abortion, yet turns the issue back very clearly to legislatures with guidance. It also squares with (now) Justice Ginsburg’s (1992) criticism that ROE prematurely halted the political reforms that were taking place in state legislatures.
Balkin’s opinion is followed by seven concurring and three dissenting opinions. My review will not do justice to these varied opinions, but a quick overview of the arguments highlights the diversity of approaches. For instance, Reva Siegel takes a feminist view and pushes the equality argument to the fore, contending that abortion laws grounded on stereotypically unequal notions of women use the criminal law power to “coerce and intimidate women into performing the work of motherhood” (p.80). Jeb Rubenfeld makes a similar point, maintaining that abortion prohibitions are unconstitutional deprivations of liberty because they essentially force women to choose between practicing abstinence/contraception or the unwanted labor of motherhood (pp.111-112). Mark Tushnet offers a concurring opinion built on the framework of [*191] Justice Douglass’ ROE concurrence. His vision of the abortion right flows from the notion of liberty inherent in the Fourteenth Amendment. Thus, there are fundamental privacy rights in play when one consults a physician and makes a decision on the basis of medical advice (p.90). Anita Allen writes to establish her concern about the Balkin opinion’s effort to establish a time frame for when abortion can be regulated and prohibited by the state. Her opinion places heavy emphasis on the “fundamental nature of the right to terminate a pregnancy” and suggests that access to medically safe abortions “cannot be cut off absolutely after a legislated ‘reasonable time’” (p.93). Intentionally foreshadowing later judicial rulings, Allen suggests that a “judicial by-pass” should be available to women after any state-imposed timeline for abortions (p.107).
Several authors pen opinions that view the Court’s role as limited in offering a constitutional remedy. The tone of these opinions emphasizes the “over-reach” of the majority. Consider Robin West’s concurrence, which suggests that Congress should use its Fourteenth Amendment powers (Section 5) to “respond to states that engage in practices or laws that are unconstitutional under Section 1” (p.121). For her, addressing the inequality of women as citizens requires “substantial congressional, not judicial activity” (p.144). West’s position squares with the “minimalist” stance taken by Cass Sunstein. He rejects the “overbroad” opinion established by the Balkin Court, instead calling for a narrow holding that declares the state abortion laws unconstitutional because of their overbreadth and their inability to pass the narrowly tailored tests he would employ (p.149). His opinion would have allowed for more legislative consideration of laws that might be narrowly tailored to advance the interests of protecting future life.
Three opinions remain to be considered. Akhil Amar’s split opinion (concurring in part/dissenting in part) presents one of the more imaginative, and in my view, unsatisfying theses. In brief, he would strike down the 1850s Texas abortion law because it was passed before women obtained the right to have equal say in politics, because it continues to impose “serious and gender-specific burdens on women,” and because it fosters a situation that limits their ability to participate as full political equals in society (p.166). What is unappealing about his analysis is the simple fact that the effect of the law is what matters, not necessarily how or by whom it was created. Thus, all of his effort to analyze when and how the law came into effect, and similarly, when and how the Fourteenth Amendment came into effect, rings hollow in view of his ultimate conclusion regarding the Texas abortion law. According to Amar, the Georgia abortion statute, enacted in 1968, is quite a different matter, and he would have simply vacated the lower court ruling and allowed the case to percolate in the lower state courts. This is not a bad decision in terms of judicial restraint, but it evades the merits of the case.
The true dissenting opinions in this book come from Jeffrey Rosen, Teresa Stanton Collett, and Michael Stokes Paulsen. The Rosen and Paulsen [*192] position is one that aligns with John Hart Ely’s (1973) attack on ROE. The position is a familiar one for those attuned to abortion debates: ROE was wrongly decided because the right to privacy exists nowhere in the text of the constitution, and because the traditions of the country and precedents of the Court do not allow for the announcement of a sweeping right to privacy that encompasses the right to terminate a pregnancy (p.171). For these justices, textual reading of the constitution matters, as does the pattern of law-making by the states, and Rosen rightly notes that the weight of the abortion law in the 50 states sided with Texas and Georgia, not against them (see p.175). Collett writes to refute the argument that somehow a woman’s liberty interest depends upon the right to an abortion. Her reading of the significant pre-ROE precedents emphasizes the “communal understanding” of the rights to procreation, motherhood, marriage, and family, not the individualistic notions championed by the more liberal justices noted above (p.190). But Paulsen’s opinion unleashes fireworks near the close of the collected opinions. Paulsen, quite simply, is the Antonin Scalia of this court. Paulsen criticizes the opinions of the majority as representing “the worst of American constitutional legal thinking . . . [consisting] of poor sophistries, masking raw assertions of power” (p.197), and as “the most awful human atrocity inflicted by this Court to date” (p.213). To join the Balkin Court majority is to “commit an act of great evil” reminiscent of the Holocaust (see pp.212-213). The strident criticism does not stop there, for Paulsen writes in his dissent (p.213):
Jack Balkin is a man of violence.
Anita Allen is a woman of violence.
Jed Rubenfeld is a man of violence . . .
Akhil Amar is a coward and a collaborator.
You get the picture. The tone here is not one of collegiality but rather moral indignation to the point of burned bridges, reminiscent of 21st century political television, not one of the typical judicial chambers. Given the otherwise reasoned tenor of many of the contributions to this collection, Paulsen’s opinion comes off as unappealingly hypercritical and distasteful in its polemic (but the religious right will revel in it).
Given the theme of this work, it is not unexpected that Justice Blackmun’s trimester framework faces some tough body blows. At different turns the opinion is referred to as a “running joke among legal academics” (Paulsen, p.241); a “famously artless opinion” (Rosen, p.241); a decision that went too far too fast (Sunstein, p.248); and “too cursory” in its efforts to defend the abortion right and too complicated to foster widespread public support and understanding (Balkin, pp.22-23). And yet, my own opinion falls somewhere closer to the more positive one put forward by Mark Tushnet (pp.250-254). In light of the materials presented to the Court at that time, the existing precedents, the arguments pitched to the justices, and Justice Blackmun’s background in medical law, I find Justice Blackmun’s compromise opinion a satisfactory one (let me confess to being a fan of Justice Blackmun’s Midwestern temperament, sense of [*193] humor, and political acumen). To reformulate Tushnet’s position, one would have to place herself in the context and milieu of that early 1970s Court to understand that what seems “questionable today seemed quite natural to them” (p.254). In other words, if you take the “constitutional concerns as the justices saw them, the structure of the opinions was either entirely sensible or even inevitable” (p.254). Moreover, it is important to recognize that Blackmun’s reference to the trimester framework was introduced in light of “present medical knowledge” (ROE v. WADE). One might conclude that ROE v. WADE said what it said because of the times and the nature of the Court and the justice assigned to author the opinion. And, we must acknowledge it as the political and constitutional compromise it represented, warts and all to some of its detractors.
This defense of Justice Blackmun brings me to my main concerns about the entire enterprise of re-writing ROE v. WADE after its 30th anniversary. The book starts from the proposition that legal experts can do a different (some might say better) job at writing an opinion in ROE, based on the knowledge and materials the justices had at their disposal, and also based on the accumulated experience of 30 years. There is a central epistemological problem here that concerns just what precisely each one of the book’s “justices” knows about the abortion issue from their own experiences, and whether they can transport themselves back into the past and truly understand what it was like to be Justice Blackmun (or Douglass for that matter). The problem can be put this way: relative to the justices of the ROE Court, the authors have the epistemological advantage of 30 years of accumulated wisdom and experience, but they suffer from the epistemological deficit of not knowing what was really happening within the Court.
Mark Tushnet raises this question in his closing essay (pp.250-254), perhaps because he was a law clerk at the Court when ROE was argued in 1973, and in a way, so does Robin West. The central problem here is that it is difficult for modern legal scholars, so exposed to the post-hoc arguments pro and con, not to bring their own baggage to the case, even if they were to try to limit themselves to the material available to the justices at the time (Robin West makes a similar point on pp.257-258). Moreover, there is the practical problem of equating an academic, legal exercise that produces “new” and “better” opinions in a forum quite different from the institutional setting of the Supreme Court. We know that the Court of that time was a collegial body with constant interaction, give and take, and occasional bargaining around opinion language. Certainly that was the case with ROE and its now (in)famous trimester framework. Moreover, we know that Justice Blackmun struggled mightily with the ROE opinion, both as a constitutional ruling, and as a political exercise in building a meaningful consensus. The point here is that the members of the Balkin Court did not have to endure such considerations, so the true dynamics of being a justice are left to the sidelines, and the opinions [*194] presented in the book must be read in light of that epistemological handicap.
Some will find this book attractive for what it attempts to accomplish. As a repository for high quality argumentation about what a pivotal abortion ruling could have looked like, the book succeeds. Yet others will find it to be no more than an artful legal academic exercise, at turns imaginative and rewarding, but at other turns depressing in its tone and artificial nature. I choose to see it as a combination of both. And despite the aim of the book, I also choose to maintain my respect for Justice Blackmun as a political and constitutional statesman of the highest order. In worse hands, the state of abortion politics could have been much worse off.
John Hart Ely. 1973. “The Wages of Crying Wolf: A Comment on ROE v. WADE.” 82 YALE LAW JOURNAL 920-949.
Ruth Bader Ginsburg. 1992. “Speaking in a Judicial Voice.” 67 NEW YORK UNIVERSITY LAW REVIEW 1185-1209.
ROE v. WADE 410 U.S. 113
© Copyright 2006 by the author, Matthew E. Wetstein.