The Ethical Argument for Roe

Guest Blogger

Philip Bobbitt

The court’s legitimacy rests on the notion that it follows the law, not the personal or ideological preferences of the justices who happen to serve on it at any given time. Americans rely on the court to exercise care and restraint against making sharp turns that might suddenly declare their everyday choices and activities unprotected or illegal. Over the course of nearly half a century, the court not only issued Roe but upheld its bedrock principles against later challenges. Throughout, the original 1973 decision enjoyed broad and unwavering public support.  

-- Washington Post Editorial, 4 May 2022

This is a rather unpersuasive attack on the Alito Draft---recent polling is the not the only measure of consensus regarding an opinion that was savagely criticized even by supporters of its holding, and a bare majority of Americans in 2022 can scarcely be said to constitute “broad and unwavering support” over five decades--- but the editorial’s very clumsiness points a way forward in the debate over precedent and Roe.

The editorial is clumsy because it ignores Justice Alito’s defense of the reversal of precedent in his invocation of Brown’s overruling of Plessy v. Ferguson, a precedent of long standing.  Surely if there was ever a time when the Court “suddenly declare[d] [Americans’] everyday choices and activities unprotected and illegal,” it was Brown and the subsequent per curiams’ destruction of segregation in everything from the public schools to parks, golf courses and swimming pools. 

Justice Alito’s point was broadened by Justice Kavanaugh who at oral argument in the Mississippi case at issue, observed that,

stare decisis notwithstanding, there is a Supreme Court history of overruling cases, [citing] Brown v Board (desegregating public schools) Baker v. Carr (the apportionment case one man [woman]/one vote), West Coast Hotel (states can regulate business), Miranda v. Arizona (requiring police to give prisoners warnings of their basic constitutional rights), Lawrence v. Texas (state may not prohibit homosexual acts between consenting adults), Mapp v. Ohio (excluded evidence unconstitutionally obtained), Gideon v. Wainwright (guaranteed right to counsel in criminal cases to impecunious defendants, and Obergefell (constitutional right to same-sex marriage).  Absent this history, Kavanaugh, stated from the bench, the country would be a “much different place.”

A commentator for The Hill argued that Kavanaugh ignored that the Court in those cases overruled precedent to recognize fundamental rights that were previously denied. Here, it was said, the Court was denying fundamental rights that were previously recognized.  Put aside for the moment the fact that West Coast Hotel v. Parrish reversed the long-standing recognition of the right to contract.  Many critics at the time Brown was handed down, including Judge Learned Hand and Professor Herbert Wechsler---both long-time supporters of racial integration-- observed that the fundamental right of free association was in fact being denied and that the Brown opinion had failed to state a neutral, general principle upon which its holding could be based, a principle, that is, that applied equally to all parties and did not deny long-recognized fundamental rights to some in favor of others.

Brown was saved by the hard work of finding a neutral, general principle to support its holding and, importantly, the per curiams, work that a “fundamental right to education” could not do.  That principle was  finally and decisively articulated in an historic essay in the Harvard Law Review by Professor Charles Black.  “The Lawfulness of the Segregation Decisions” argued that segregation by law was essentially the maintenance of a caste system by the state---golf courses and bathrooms were actually linked to schoolrooms---which is obviously incompatible with the text of the 14^th amendment that guarantees the equal protection of the laws.  It wasn’t simply separate schools, which continued to exist during and after the ratification of the 14^th amendment; or even segregation on public transport which became widespread shortly thereafter without significant comment by the ratifiers.  It was the entire system of Jim Crow, carefully built, year by year, in state after state that sought to subordinate Black people encompassingly.

The error of the editorialists and the commentators, however, points the way to what should have happened to Roe. What was needed for Roe was a reconstruction similar to that which was provided to Brown. 

I attempted this in Constitutional Fate (“Applying Ethical Arguments,”) relying on a principle of our constitutional ethos that forbade the coercion of intimate acts; that this ethical principle was consistent throughout our constitutional history even though it was the 20^th century  liberation of women in society that brought pregnancy within the ambit of such individual intimacy and beyond the confines of the family (so long as pregnancy was only a family concern—even the epithet “illegitimate” confirmed this---it could not be a question of personal intimacy); and that Roe’s trimester rule could be reconciled with this principle when women who declined to get abortions after 24 weeks could be said to have waived their rights to do so.

As far as I can tell, this argument persuaded no one.  While giving an honorary lecture at the University of Texas Law School where I was then teaching, Judge John Noonan went so far as to throw a copy of Constitutional Fate from the podium into the audience in an expression of angry disdain for my Roe arguments and, apart from adverse book reviews at the time, I am unaware of anyone who has even bothered to discuss my views on the matter.

Well, I am no Charles Black and it may be that the reconstruction of Roe that is analogous to his rehabilitation of Brown still awaits fresh arguments beyond those I offered.  That, however, is the way forward---not personal attacks on the justices who would overrule Roe nor misrepresentations of their positions or exaggerated claim of public consensus.  In the near term, this may not change the rejection of Roe by the current Supreme Court but it might salvage Griswold, Lawrence and Obergefell and, someday, lead to meaningful restraints on the states’ aggressive adventures at restricting abortions.

Philip C. Bobbitt is Herbert Wechsler Professor of Federal Jurisprudence at Columbia Law School. You can reach him by e-mail at pbobbi@law.columbia.edu.