Monday, June 27, 2022

The Conservative Legal Push to Overturn Roe v. Wade Was 50 Years in the Making

 At the Wall Street Journal, "An increasingly influential movement questioned the view of constitutional rights underpinning the decision":

WASHINGTON—The overruling of Roe v. Wade was 50 years in the making—the culmination of a conservative judicial movement that rejected the interpretation of constitutional rights underpinning that 1973 Supreme Court decision.

It took far longer than many conservatives expected.

The majority opinion in Dobbs v. Jackson Women’s Health Organization, first disclosed in draft version by an extraordinary leak in May, declared that Roe and later abortion-rights precedents have no basis in the Constitution. “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision,” Justice Samuel Alito wrote for the court, joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

Even as a young lawyer, Justice Alito had looked for ways to push back on the reasoning behind Roe going back to the 1980s, when he worked in the Reagan Justice Department. In a May 1985 memo, he sketched out opportunities “to advance the goals of bringing about the eventual overruling of Roe v. Wade.”

Former Attorney General Edwin Meese III championed the conservative jurisprudence during the Reagan years and promoted the young lawyers—Justice Alito among them—who would rise to influence through successive Republican administrations.

“It really has been a matter of pretty clear record for a long time that [Roe] was wrong,” he said.

Because the Constitution doesn’t expressly grant women a right to end a pregnancy, many conservatives, like Mr. Meese, have said the court erred by construing a right to privacy that allows for abortion at least in the earlier stages of gestation. That originalist legal view overlapped with the convictions of a broader set of people who opposed abortion on what they considered moral grounds as the taking of a life.

Friday’s liberal dissenters pointed to a different constitutional tradition, one that has seen rights expand since the country’s beginnings. The framers “understood that the world changes. So they did not define rights by reference to the specific practices” of their time but “defined rights in general terms, to permit future evolution in their scope and meaning,” Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan wrote in a joint opinion.

For the antiabortion movement that has helped power Republican political success—including the 2016 election of Donald Trump, who as president appointed three justices who were in the Dobbs majority—the end of Roe was long a key goal. With states now free to regulate the procedure, most abortions likely will be outlawed or at least curbed in about half the states.

But for the conservative legal movement, “this was not a matter of deciding whether abortion is a good idea or a bad idea,” said Mr. Meese, now 90 years old. “It’s a matter of the Constitution.”


That Roe would stoke a legal counterrevolution leading to its own undoing was far from evident in January 1973, when by a 7-2 vote the Supreme Court recognized a woman’s right to terminate a pregnancy before fetal viability, or the capacity to live outside the womb. The decision invalidated dozens of state laws banning or restricting abortion, many dating from the 19th century.

The decision followed a line of cases that had steadily removed the government from regulation of family life and sexual practices. In the Roe opinion, Justice Harry Blackmun cited a series of earlier decisions. It began in the 19th century, he wrote, when the court rejected Union Pacific’s demand that a female passenger, who was suing the railroad for negligence after an upper berth fell on her, submit to a surgical examination.

“No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person,” the court said in 1891, a year after Louis Brandeis, a future justice, co-wrote a seminal article in the Harvard Law Review, “The Right to Privacy.”

Justice William O. Douglas had invoked that legal tradition in Griswold v. Connecticut, a 1965 decision striking down an 1879 state law banning contraception. The “marriage relation” involves “a right of privacy older than the Bill of Rights, older than our political parties, older than our school system,” he wrote.

Justice Hugo Black was among those who disagreed. “I like my privacy as well as the next one,” he wrote in his Griswold dissent, “but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision.” The lack of such a named provision has been underlying judicial opposition to Roe v. Wade ever since.

In a passage that Justice Antonin Scalia later called “garbage,” Justice Douglas wrote that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”

In that context Justice Blackmun wrote in his 1973 Roe decision that the right of privacy was not only grounded in the Constitution, but also “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

That right wasn’t absolute, he added, and “at some point in pregnancy” government may “assert important interests” that include “protecting potential life.” Following a 1972 lower court decision invalidating Connecticut’s abortion ban, Roe drew the line at viability, generally seen as between 22 and 24 weeks.

While even some conservative commentators praised the decision, the legal substance of the ruling came under some criticism—including from some liberal-leaning scholars who supported a woman’s right to an abortion. Like Justice William Rehnquist, who dissented from Roe, Yale professor John Hart Ely likened the decision to the 1905 case of Lochner v. New York, which struck down a state law limiting working hours for bakers with the argument that it violated a different unenumerated right the court found implicit in the Constitution: the “liberty of contract.”

That precedent, which jeopardized a swath of state laws over workers’ safety and fair treatment, had been effectively abandoned by a series of decisions over the ensuing half-century. “Roe may turn out to be the more dangerous precedent,” Ely wrote, adding: “I suppose there is nothing to prevent one from using the word ‘privacy’ to mean the freedom to live one’s life without governmental interference. But the Court obviously does not so use the term. Nor could it, for such a right is at stake in every case.”

In response to Roe, abortion opponents initially focused on amending the Constitution. Rep. Larry Hogan Sr. (R., Md.), the father of Maryland’s current governor, proposed within days of the Supreme Court’s opinion an amendment extending due-process and equal-protection rights to “any human being, from the moment of conception”—effectively equating abortion with murder. When such proposals died in Congress, activists turned to the states. By 1981, more than a dozen legislatures, including Massachusetts and Mississippi, had passed resolutions calling for a constitutional convention to consider a human-life amendment. The movement stalled short of the 38 necessary states.

Remaking the judiciary became a central strategy for reversing Roe when Ronald Reagan became president in 1981, amid a broader effort to move federal courts against what Mr. Meese called the “radical egalitarianism and expansive civil libertarianism” the justices had embraced in the 1950s and ’60s. In that era, the court under Chief Justice Earl Warren took steps to abolish racial segregation, end government censorship, extend voting rights and increase protections for criminal defendants, as well as rulings like Griswold that defined a broader concept of privacy and individual rights.

Conservatives argued that in those decisions the justices sometimes overstepped their authority to remake society as they pleased...