Constitutional Trench Warfare over Abortion

Mark Graber

For the Symposium on Mary Ziegler, Abortion and the Law in America: Roe v. Wade to the Present (Cambridge University Press, 2020).

Americans have engaged in constitutional trench warfare since the demise of the Warren Court.  For almost fifty years, progressives and conservatives have fought pitched battles over a wide range of constitutional issues with each side on most fronts gaining only a few feet of constitutional turf.  The exclusionary rule and Miranda warnings remain the law of the land, but they are now chocked with enough exceptions so that sophisticated police officers and prosecutors can usually find ways to admit the resulting incriminating evidence and confessions.  The number of religious monuments government can place or maintain on the public square has increased, but unadorned displays of the Ten Commandments are still out.  Lower federal courts battle, without help from the Supreme Court, over how dangerous a gun needs to be for that weapon to be subject to legislative bans.  Congress can tax people who do not buy health insurance, but cannot compel purchase.  Same sex marriage, campaign finance and, in the last year or so, free exercise are among the few subject matters in constitutional law in which either progressives or conservatives have made substantial gains.

Abortion and the Law in America: Roe v. Wade to the Present documents how this constitutional trench warfare has structured debates over abortion rights during the past fifty years.  Professor Mary Ziegler meticulously details how a debate Laurence Tribe once called “the clash of absolutes” has become bogged down in factual minutia about the “costs and benefits” of different abortion policies.  Although repeating “costs and benefits” what seems like two-hundred times in a two-hundred page book is overkill, Ziegler successfully drives her point home.  Pro-choice and pro-life forces continue to make appeals to broad principles of human flourishing and right.  Nevertheless, the daily arguments that now dominate abortion discourse are tied to very specific facts and very specific outcomes and concern the costs and benefits of different policies affecting the health of women, the status of the unborn, the public fisc, and religious freedom.  Supreme Court doctrine that once explored the balance between reproductive freedom and potential life now turns on whose testimony about abortion clinics is to be believed.  Americans at present often forego rights talk when discussing abortion, Ziegler correctly details, but contrary to common predictions foregoing or supplementing rights talk in favor of or with policy analysis has done nothing to diminish a debate marked by “hopeless polarization, personal hatreds, and political dysfunction.” (212).

Hellerstedt v. Whole Women’s Health (2016) and June Medical Services v. Russo (2020) illustrate how constitutional trench warfare works.  The numerous judicial opinions in both cases delved far more into contested facts and far less into constitutional doctrine than either Roe v. Wade (1973) or Planned Parenthood of Southeastern Pennsylvania v. Casey (1992).  The central questions in the latter two cases were whether the Constitution protected abortion rights and, if so, what standards did abortion regulations have to meet to pass constitutional muster.  The central question in Hellerstedt and June Medical was whether the facts demonstrated what seemed medical unnecessary regulations on abortion clinics were “an undue burden” on abortion rights.  As Ziegler documents, all parties in Hellerstedt spent enormous energy building a factual record that they believed would demonstrate the Texas clinic regulations unduly burdened or did not unduly burden reproductive freedom. The justices scrutinized those factual details obsessively when reaching judgment.  The opinions in Russo, for example, spend page after page exploring whether several doctors who performed abortions in Louisiana would be likely to get admitting privileges in local hospitals if they made a few more phone calls or groveled a bit more before local hospital boards. 

The resulting decisions did little more than strike down a particular law in a particular state. The Hellerstedt and Russo precedents stand for little more than the proposition that any state law a lower federal court finds identical to the Texas law declared unconstitutional in Hellerstedt will also be found unconstitutional.  Should, however, Georgia reject Texas’s use of the Oxford comma when passing a statute regulating abortion clinics in that state, the possibility exists that Hellerstedt and Russo will not provide a sufficient basis for declaring unconstitutional those restrictions on reproductive choice.  The only certainty is that pro-life and pro-choice forces will hire expensive experts who will offer contesting interpretations of the role Oxford commas play in abortion regulations, Justice Breyer and Alito will devote at least five pages of their opinions to an analysis of that expert testimony, Breyer will conclude that the absence of the Oxford comma does not distinguish the Georgia law from the Texas law struck down in Hellerstedt, and Alito will conclude the opposite.

That Abortion and the Law spends two-hundred pages mucking around in the weeds of American reproductive policy reflects developments in the constitutional politics of abortion rather than Ziegler’s lack of vivid imagination.  Constitutional trench warfare takes place as much in metaphorical weeds as actual trench warfare takes place in the real mud.  A study of the bold ambitions of both the pro-choice and pro-life forces would no more require Ziegler’s meticulous focus on detail as a study of the broader French and German ambitions during World War One would demand an analysis devoted to the different forms of mud in northwest France.  Still, while a study of World War I in 1916 might note those broader ambitions, mud mattered more in real trench warfare than grand military strategy.  Armies engaged in trench warfare had to detail the mud in front of them when contemplating the best way to move the front two hundred feet in a favorable direction.  Each side hoped that consistent success in the mud slogging necessary for moving the front two hundred feet in a favorable direction would at some point lead to the collapse of the rival army.  Still, studies focusing on 1916 battle strategies must focus on the precise texture of the mud in particular patches rather than on grander military themes.  The contemporary abortion politics Ziegler documents has the same unromantic structure.  Each side hopes to drive the other side from the field eventually.  Ziegler explains, however, why immediately success is unlikely.  Pro-choice forces have little hope in the near future of gaining a decision providing poor women with a constitutional right to a state-funded abortion.  Pro-life forces had rarely had reason to hope that Roe v. Wade would disappear in the foreseeable future from constitutional politics.  Just when Republicans finally seemed to have obtained a committed pro-life majority on the Supreme Court, they lost control of all three branches of the national government in the 2020 national election.  The result of this institutional gridlock is that the battle for abortion must be fought one state regulation at a time, with opposing forces concentrating on the facts and factfindings necessary to sustain or overrule those regulations rather than on the principles that might underlie any decisive blow in the future.  Weeds, mud and mudslinging, Ziegler convincingly argues, are what the contemporary constitutional politics is about, even as broader principles lurk quite visibly in the background.

Abortion and the Law highlights the important, but unappreciated role of factfinding in the constitutional politics of the United States.  The Constitution insists facts and law have equal status in constitutional decision making.  Article III, Section 2 states, “In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction both as to Law and Fact.”  The standard constitutional law course, all courses on constitutional law outside of law schools, and almost all constitutional scholarship, however, are devoted to how the Supreme Court exercises “appellate jurisdiction . . . as to Law.” “[A]nd fact” has been excised from constitutional pedagogy and from constitutional scholarship, but hardly from constitutional law and practice.  Mark Killenbeck in a fabulous forthcoming article details how the Supreme Court’s decisions in Korematsu v. United States (1944) and Trump v. Hawaii (2017) turned on judicial factfindings and judicial decisions to defer to some factfinders rather than others.  Killenbeck and others document how the line of decisions that led to Brown v. Board of Education (1954) turned on whether constitutional decision makers thought claims that separate schools were equal rested on a sound empirical basis.  Social science was the stated difference between Brown’s (1954) rejection of Jim Crow education and Plessy v. Ferguson’s (1896) tolerance of Jin Crow transportation. Contemporary constitutional trench warfare increases the relative importance of constitutional factfinding.  The trench warfare taking place in constitutional criminal procedure typically focuses on empirical judgments about the impact of some rule on police behavior.  The trench warfare taking place in affirmative action emphasizes empirical judgments about the effectiveness of alternatives to race-conscious policy as means of fostering diversity in higher education.

Constitutional pedagogy, scholarship, and practice need to adjust to a contemporary constitutional trench warfare that revolves around contested questions of constitutional fact.  As Ziegler carefully documents, the major abortion cases handed down after Casey have concerned the extent to which the justices defer to legislative fact judgments (partial birth abortions) or lower federal court fact judgments (clinic regulations).  These cases should compel students of constitutional law to learn and explore the official rules for determining when the Supreme Court should accept legislative and lower federal court fact judgments on the costs and benefits of abortion regulations and when justices should determine for themselves what constitutes an undue burden on reproductive choice.  Practitioners and political scientists need to assess whether the Supreme Court actually obeys the official rules on fact deference or whether fact deference is applied inconsistently with an eye on what the justice or judicial majority believes to be the right facts and values.  Republican justices may defer more to judgements made by Louisiana officials as to regulations on admitting privileges needed to ensure abortion clinics are safe than to judgements made by Massachusetts officials about the regulations on protests needed to ensure abortion clinics are safe.

Constitutional trench warfare highlights the exceptional importance of the lower federal courts.  To the extent abortion depends on fact judgments about fetal biology and how abortions are most safely performed, access to abortion is likely to depend far more on the lower federal courts (and state courts) than on the Supreme Court.  The justices, at least officially, claim they defer to the lower federal court fact judgments.  As important, the Supreme Court does not review the vast majority of abortion or other cases decided by the lower federal courts.  To the extent Supreme Court doctrine makes minute fact judgments decisive when applying the constitutional law of abortion, and the justices do not review or defer to lower federal court fact judgments, lower federal court fact judgments are more often than not decisive in determining what women in what parts of the country have access to what forms of abortion.

Abortion and the Law details how the politics of constitutional facts is identical to the politics of constitutional law. In the polarized United States, Ziegler, my colleague Maxwell Stearns in an important forthcoming project, and many others point out, fact judgments align perfectly with value judgments.  Proponents of capital punishment think the death penalty deters murder.  Opponents think capital punishment has no deterrent effect.  Pro-life advocates maintain a casual link exists between abortion and breast cancer.  Pro-choice advocates deny any causal link.  This fact/value alignment confounds common claims that the heat of abortion debates might be reduced if proponents stopped talking about the Constitution and began talking about public policy.  Changing the focus of the abortion debate from rights talk to social science discourse, Ziegler points out, adjusts who gets cited in the footnotes, but not what conclusions people reach.

The differences between pro-choice and pro-life advocates over whether abortion causes breast cancer complicates Ziegler’s claim that “[p]ro-choice and pro-life activists have looked to different experts and collected distinct evidence” (210). The evidence pro-choice advocates point to when claiming that no link exists between abortion and breast cancer is published in the leading peer-reviewed medical journals throughout the world.  The evidence pro-life advocates point to when claiming a link between breast cancer and abortion has not survived peer review for decades.  Other pro-choice positions, Abortion and the Law documents, also align with the recommendations of such medical and scientific authorities as the College of Obstetricians and Gynecologists.  Few pro-choice activists campaign actively against abortion regulations that most doctors support.  Pro-life “facts,” by comparison, often lack medical and scientific foundation.    Too often, Ziegler points out, the evidence pro-life advocates cite is either based on gross misinterpretations of the medical data or are conclusions reached by pro-life researchers working in pro-life institutes that do not merit publication in peer-review journals.  The translation of “pro-choice and pro-life activists look to different experts” is frequently “pro-choice activists look to scientists and doctors, while pro-life activists look outside mainstream scientific and medical communities.” Ziegler acknowledges this point.  The constitutional trench war over abortion she describes is between those who accept contemporary medicine and those who think abortion rights advocates have corrupted contemporary medicine.

The different scientific foundations for pro-choice and pro-life facts suggests Ziegler is not quite right when she repeatedly claims that abortion politics has become a struggle over contested facts concerning the costs and benefits of abortion.   Claims that doctors who perform abortions are guided by satanic voices might technically be classified as assertions of fact, but they are not rooted in the processes that experts require for determining facts.  Abortion and the Law more accurately describes contemporary abortion struggles when Ziegler compares pro-life claims to those made by climate change deniers and the anti-vaccination movement.  One side of the abortion debate that Abortion and the Law scrupulously details, like one side in too many other debates that wrack American politics, has become unmoored from factual anchors, discarding contemporary science in an effort to impose a purely ideological agenda on their fellow citizens.  The question for the future is whether the United States shall practice evidence-based politics or continue a constitutional trench warfare in which scientific armies can only fight to a standstill forces that prefer myth and legend to research.