The Essential Holding of Casey: Rethinking Viability

The joint opinion in Casey v. Planned Parenthood included dicta reaffirming the rule that abortion rights extend to the point of fetal viability. This manuscript argues that the Court has never offered an adequate rationale for the viability standard, an unusually permissive line when compared with abortion laws in other countries. The Court\u27s normal obligation to justify the lines it draws is augmented in light of the disparate impacts generated by the viability rule, which attributes constitutional significance to a characteristic that tends to vary with the race and gender of the fetus. The viability standard can also be challenged on the ground that it undermines legitimate state interests in regulating late-term methods of abortion described as gruesome by even those Justices most supportive of abortion rights

Twenty-Week Abortion Statutes: Four Arguments

The Supreme Court has never justified the conclusion that the Constitution bars any substantial regulation designed to protect fetal life prior to viability. No majority opinion has offered a rationale for the viability rule, and the arguments in non-majority opinions are conclusory or fail to distinguish viability from earlier possible lines. The viability rule is arbitrary because the capacity of a fetus to survive outside the womb says nothing about the value of the fetus from the standpoint of the state or the burden of pregnancy on the mother, the two interests the rule purports to balance. The arbitrary character of the rule is highlighted by evidence that viability can vary for similarly situated fetuses based on race, gender and irrelevant behavioral and environmental factors. Over a third of the states in recent decades have enacted legislation restricting abortion after twenty-weeks\u27 gestation. Since some fetuses at twenty weeks will be previable, such legislation offers an opportunity to revisit the duration of abortion rights. This article advances four arguments for the constitutionality of a twenty-week statute, including three based on current case law or minor modifications to current case law. First, the risks of late-term abortions are significant, and states should be allowed to adopt twenty-week statutes to promote maternal health by channeling women toward safer alternatives. Second, given the uncertainty of viability determinations, a state should be allowed to adopt a twenty-week statute to protect viable fetuses from being aborted based on erroneous findings of nonviability. Third, new state interests supporting twenty-week legislation should not be subject to the viability rule, which was developed to measure a state interest in protecting fetal life. Fourth, since the justifications for the viability rule were never explored or analyzed in detail, principles of stare decisis would support reconsideration of the durational issue

Self-Conscious Dicta: The Origins of Roe v. Wade’s Trimester Framework

One of the controversies arising from Roe v. Wade (1973), has concerned whether the conclusions undergirding the opinion\u27s “trimester framework” should be considered part of the holding of the case, or instead classified as dicta. Different Supreme Court opinions have spoken to this question in different ways. This article reviews materials from the files of Justices who participated in Roe, seeking insight as to what the Court thought about the issue at the time. The article concludes that Justices in the Roe majority understood the opinion’s trimester framework to consist largely of dicta, unnecessary to a ruling on the constitutionality of the Texas abortion statute. The extensive use of dicta in Roe can be attributed to a desire to provide guidance to state legislators and perhaps a hope of reducing the number of abortion cases the Court would need to address in future terms. The article considers whether the Court might have done well to wait for a case raising the issue of the duration of abortion rights. If the parties had litigated the question in the lower courts, the Justices presumably would have enjoyed the benefits of a full record and plenary briefing. This might have raised questions about the asserted “logical and biological justifications” for the viability rule (one element of the trimester framework), or better equipped the Court to justify the rule in constitutional terms

State Interests and the Duration of Abortion Rights

Few areas of the Supreme Court’s jurisprudence have attracted as much attention in recent decades as the case law recognizing a constitutional right to terminate a pregnancy. Justice Anthony M. Kennedy has exercised more influence over the Court’s abortion jurisprudence than perhaps any other sitting Justice. His jointly authored plurality opinion in Planned Parenthood of Southeastern Pa. v. Casey reaffirmed the basic right to an abortion first recognized in Roe v. Wade, applying that right to regulations effective from the outset of pregnancy. Later opinions, particularly Justice Kennedy’s dissent in Stenberg v. Carhart and his majority opinion in Gonzales v. Carhart, have instead focused on regulations applicable to abortions performed in the second trimester of pregnancy or beyond. Justice Kennedy’s more recent opinions may suggest that we have not heard the last word on state regulation of late-term abortions. The reasoning of Justice Kennedy’s opinions in Stenberg and Gonzales casts doubt on the justification for the dicta in Roe/Casey indicating that the constitutional right to abortion continues until a fetus is “viable,” i.e., able to survive outside the womb with medical assistance. The Court has never offered an adequate constitutional justification for the viability rule, a line that produces arbitrary and irrational results, pushes U.S. law outside the international mainstream and prevents the development of a stable political consensus on regulation of abortion. It remains to be seen what Justice Kennedy will do if a future case requires the Court to squarely address the duration of abortion rights. While his opinions in Stenberg and Gonzales are written so that continued adherence to the viability rule would be possible, they also make clear that Justice Kennedy finds second-trimester abortions troubling and recognizes legitimate grounds for state regulation at that stage of pregnancy. Justice Kennedy’s opinions leave open at least two paths by which states might be afforded greater flexibility in the regulation of second-trimester abortions. First, Justice Kennedy’s opinion in Gonzales (especially when read in light of his Stenberg dissent) permits states to justify abortion regulations based on novel state interests distinct from the two recognized in Roe (protecting fetal life and maternal health). There is no reason that all of the new state interests permitted under Gonzales would necessarily be governed by the viability rule, which was developed in the context of the particular state interest in protecting potential life. Second, it may be that the time has come to revisit the viability rule or, more accurately, to finally consider its validity for the first time on the basis of plenary briefing and argument. The viability rule was adopted in dicta in Roe and reaffirmed in dicta in Casey. Consequently, the Court was not forced to grapple with the duration of abortion rights in a case where it mattered to the outcome. The result has been the Court’s longstanding failure to explain why the capacity to survive outside the womb should be required as a constitutional matter before a state can protect the life of a second-trimester fetus. These factors — adoption in dicta, inadequacy of briefing and argument, and failure to offer a convincing rationale — have long been viewed as undercutting the precedential weight of rules announced in prior opinions. Moreover, the pragmatic considerations that persuaded the Casey plurality to retain the right to an abortion cut the opposite direction when applied to the viability rule. For instance, the Court has acknowledged “the uncertainty of the viability determination,” a characteristic that makes viability unworkable as a line to regulate medical practice. Likewise, while some women may place reliance on the availability of abortion in making decisions about relationships and career paths, it is implausible that such decisions place substantial reliance on the viability rule’s extension of abortion rights through most of the second trimester of pregnancy. Consequently, the Court’s decisions surrounding the law of precedent would support reconsideration of the duration of abortion rights in a case that squarely presented the issue

Qui Tam Litigation Against Government Officials: Constitutional Implications of a Neglected History

The Supreme Court concluded twenty-five years ago, in Lujan v. Defenders of Wildlife, that uninjured private plaintiffs may not litigate “generalized grievances” about the legality of executive branch conduct. According to the Lujan Court, Congress lacked power to authorize suit by a plaintiff who could not establish some “particularized” injury from the challenged conduct. The Court believed litigation to require executive branch legal compliance, brought by an uninjured private party, is not a “case” or “controversy” within the Article III judicial power and impermissibly reassigns the President’s Article II responsibility to “take Care that the Laws be faithfully executed.” The decision effectively granted the President a semi-exclusive power to monitor and ensure the legality of a broad range of executive branch activity. The Lujan Court overlooked a now relatively unfamiliar aspect of Anglo-American legal history. From the fourteenth through the eighteenth centuries, the English Parliament, American colonial and state legislatures, and early Federal Congresses routinely enacted “qui tam” legislation that authorized uninjured private “informers” to collect penalties for unlawful conduct by government officials. These qui tam statutes authorized private litigation against executive officials in circumstances that would be classified as generalized grievances under modern standing jurisprudence. The Lujan Court acknowledged historical use of qui tam legislation, but apparently believed such statutes were limited to regulation of private parties. The widespread practice of regulating government officials through qui tam legislation in the five centuries leading up to the framing of our Constitution suggests the need to reconsider the reasoning of Lujan, though perhaps not the result, and to revise the Court’s understanding of legislative tools available to monitor the legality of executive branch conduct

The Forest And The Trees: What Educational Purposes Can A Course On Christian Legal Thought Serve?

In this short essay, I want to consider the educational purposes a course in Christian legal thought might serve. How could having such a course in the curriculum help accomplish the goals of legal education? One can understand why a law school with a Christian identity would want to offer this sort of course. Such law schools embrace a theology that helps adherents make sense of the world, including the world of human law. The less obvious question I want to consider is why a law school that does not subscribe to a particular theological understanding of the world (or that subscribes to a theological understanding grounded in some other set of religious beliefs) might find a course on Christian legal thought educationally beneficial for its students

Fueling Controversy

In a recent Yale Law Journal article, Linda Greenhouse and Reva Siegel question the received wisdom that the Supreme Court’s decision in Roe v. Wade generated a political backlash, inflaming conflict over abortion and damaging the political process. The evidence they highlight shows that political conflict over abortion predated the Roe opinion, spurred by the Catholic Church and by Republican Party strategists seeking to foster party realignment. This enriched picture of the political and social landscape at the time of the decision undermines any simplistic suggestion that Roe served as “the sole cause of backlash” or “single-handedly caused societal polarization and party realignment around the question of abortion.” Careful evaluation of the Court’s handiwork in Roe requires a sophisticated understanding of forces contributing to the abortion conflict, an understanding the authors advance through their research. But such an evaluation also demands a sophisticated understanding of the Roe decision itself, particularly the choices the Justices made in writing the opinion, choices that hampered any stable political resolution of the abortion issue. Supreme Court files from Roe and Doe show that Justice Blackmun circulated successive draft opinions staking out three distinct and increasingly expansive positions on the constitutional right to abortion. The Court ultimately gravitated to the most far-reaching of these formulations, recognizing a right to abortion for any reason until the fetus becomes viable (i.e., able to live outside the womb). This viability rule extended constitutional abortion rights through the second trimester of pregnancy, even though Justices in the majority recognized that resolution of Roe and Doe did not require an opinion on the duration of abortion rights, an issue neither briefed nor argued by the parties. The Court’s unnecessary, unexplained and almost casual adoption of the viability rule created a regime of abortion rights offering far less potential protection for fetal life than most other countries of the world. The Court’s adoption of the viability rule in Roe did not initiate political conflict over abortion, but it did channel and exacerbate the nascent conflict in ways that make a stable resolution difficult to attain. By greatly restricting the range of permissible legislative action, the viability rule disabled legislative bodies from negotiating political compromises like those worked out in other countries. At the same time, the decision facilitated pro-life mobilization, putting abortion rights advocates in the position of defending methods of abortion “susceptible to gruesome description,” as Justice Ginsburg once rather delicately framed the matter. While the political system might have adjusted to a more limited constitutional right, Roe’s extension of abortion rights through the second trimester of pregnancy created a structural misalignment between constitutional law and popular sentiment, given that a large majority of the public believes second trimester abortions should be presumptively illegal. Absent a fairly seismic shift in public opinion about late-term abortions - something that has not occurred in the nearly four decades since Roe - the viability rule made it impossible to enact abortion laws even roughly approximating the views of a majority of Americans. The result has been an intractable battle over abortion, centered on the future of the Court

Promoting Executive Accountability Through Qui Tam Legislation

For hundreds of years prior to ratification of the U.S. Constitution, Anglo-American legislatures used qui tam legislation to enforce legal constraints on government officials. A qui tam statute allows a private informer to collect a statutory fine for illegal conduct, even if the informer lacks the particularized injury normally required for Article III standing. This essay explores whether qui tam regulation should be revived as a means of ensuring executive branch legal accountability