Tuesday, July 10, 2018

Contra Laurence Tribe, Why Overturning Roe v. Wade Will Not Authorize States to Mandate Abortion

In a recent tweet in anticipation of President Trump's nomination to fill the latest Supreme Court vacancy, Professor Laurence Tribe claims that overruling Roe v. Wade, 410 U.S. 113 (1972) would be a "two-sided coin" because it would both empower states to ban abortion but also authorize states to require individuals to abort an unborn child.  Here is Tribe's tweet, which is no longer pinned to the top of his twitter feed:

“Too few people realize that Roe v. Wade is a two-sided coin.  It protects a woman’s liberty to choose *whether or not* to bear a child.  Relegating that choice to the state isn’t a PRO-LIFE move but an ANTI-LIBERTY move.  If a state can say “stay pregnant!” it can also say “abort!”

At first glance, this argument might have superficial appeal.  If Roe created a “liberty to decide whether to give birth,” that liberty would presumably include both the liberty to abort an unborn child and the liberty to give birth.  Hence, it would seem, repudiation of Roe would eliminate any constitutional obstacles to a state requirement that pregnant women abort an unborn child.

Tribe's analysis is critically incomplete.  Roe did more than recognize a liberty to decide whether to give birth and thus a right to abort.  The Court also held that protection of the unborn child  (what the Court called "prenatal life") during the first two trimesters of pregnancy does not advance a compelling state interest that justifies overriding this right.  While the Court referred to the interest in "prenatal life" as "important and legitimate," it held that the state interest in the unborn child’s life only becomes compelling when the child is capable of surviving outside the womb, a period the Court equated with the third trimester of pregnancy.  See Roe, 410 U.S. at 162-63.  During this third trimester, the Court said, a state can ban all abortion, "except when it is necessary to preserve the life or health of the mother."  Id. at 163-64.

Thus, the modern Court could jettison Roe in one of two ways.  First, it could (as Tribe assumes) hold that the "liberty" declared in the 14th Amendment does not include the "liberty to decide whether to give birth," thereby thereby freeing states to regulate childbearing as they saw fit.  Second the Court could leave Roe’s definition of liberty entirely intact, but hold, contrary to Roe, that protection of "prenatal life" before viability does in fact serve a compelling interest, as Justice Byron White explained over three decades ago. See Thornburgh v. American College of Obstetricians, 476 U.S. 747, 795, n .3 (1986) (White, J. dissenting) (“The point is that the specific interest the Court has recognized as compelling after the point of viability — that is, the interest in protecting “potential human life” — is present as well before viability, and the point of viability seems to bear no discernible relationship to the strength of that interest.  Thus, there is no basis for concluding that the essential character of the state interest becomes transformed at the point of viability.”); id. at 795 ("The governmental interest at issue here is in protecting those who will be citizens if their lives are not ended in the womb.  The substantiality of this interest is in no way dependent on the probability that the fetus may be capable of surviving outside the womb at any given point in its development, as the possibility of fetal survival is contingent on the state of medical practice and technology, factors that are in essence morally and constitutionally irrelevant.  The State’s interest is in the fetus as an entity in itself, and the character of this entity does not change at the point of viability under conventional medical wisdom.  Accordingly the State’s interest, if compelling after viability [as Roe held], is equally compelling before viability.").  Indeed, Justice Kennedywho would later co-author the joint opinion in Planned Parenthood v. Casey, 505 U.S. 833 (1992), apparently agreed that Roe was erroneous in the first interest precisely because it held that protection of prenatal life before viability was not a compelling interest.  See Webster v. Reproductive Health Services, 492 U.S. 490, 519 (1989) (Rehnquist, C.J., joined by White  and Kennedy, JJ.) (“[W]e do not see why the State’s interest in protecting potential human life should come into existence only at the point of viability, and that there should therefore be a rigid line allowing state regulation after viability bur prohibiting it before viability.”).

This latter approach seems to this blogger to be the far more likely course, as it would follow naturally from the assertion by the Joint Opinion in Casey that any error in Roe would "go only to the strength of the state interest in fetal protection, not to the recognition afforded by the Constitution to the woman's liberty."  See id. at 858 (opinion of O’Connor, Kennedy and Souter, JJ.); see also id. at 871 (“The weight to be given this state interest, not the strength of the woman’s interest, was the difficult question in Roe.”).

To be sure, both approaches would “overrule Roe,” in the sense of restoring to the states the authority they possessed for nearly two centuries to restrict abortion. However, only the first approach could conceivably leave states free to require a woman to abort an unborn child.  Under the second approach, by contrast, a state ban on live birth would remain presumptively invalid, just as such a ban is presumptively invalid under the Roe/Casey regime.  Indeed, such a ban would only survive constitutional scrutiny (just as it would survive scrutiny under the current regime) if a state could identify an entirely different compelling state interest that somehow justified overriding the right to give birth.  A state would also have to convince the Court that such a ban is narrowly tailored to advance that supposed compelling interest.  This blogger is not aware of any compelling interest in state-mandated destruction of "prenatal life."  In any event, and as already noted, such a compelling interest, if it exists, would also justify state-mandated abortion under the current Roe/Casey regime, with the result that the prospect of state-mandated abortion does not support a preference for the current regime over the second approach sketched above.

Whatever arguments there may be for retaining the Roe/Casey regime, the specter of state-forced abortion is not one of them.

Wednesday, July 4, 2018

Happy Independence Day!

To honor Independence Day, here are some reminders, from the campus of the College of William and Mary, of our nation's struggle for independence. 

   Wrote The Declaration

Hero of the Battle of Trenton

Captain in the Continental Army (left)
Thomas Jefferson's Teacher. Signed Jefferson's Most Famous Work (right)

Memorial to the French Soldiers Who Died in the Siege of Yorktown

Tuesday, January 10, 2017

Sunday, January 8, 2017

On The Senate's Unchanged Discretion to Refuse to Consider Nominees

Principled But Wrong

The Republican National Committee is touting Vice President Joe Biden's assertion that Senate Democrats should not obstruct consideration of President-elect Trump's nominee for the U.S. Supreme Court.  In particular, the RNC is highlighting the Vice President's following statement, made during a lengthy interview on PBS.  

“[T]he Constitution says the president shall nominate, not maybe could maybe can.  He shall nominate.  Implicit in the constitution is that the senate will act on its constitutional responsibility, will give its advice and consent.  No one is required to vote for the nominee, but they, in my view, are required to give the nominee a hearing and a vote.  It’s been my policy since I’ve been in the United States Senate.”

This blogger gives the Vice President significant credit for taking the same position with respect to the next President's nominee as he took with respect to President Obama's nominee, Judge Merrick Garland, for the same seat.  The Vice President is to be commended for adhering to principle, even when such adherence could disadvantage the objectives of his own party.  At the same time, this blogger respectively disagrees with the Vice President's assertion that the Constitution somehow requires the Senate to provide any particular form of consideration to a President's nominee for the Supreme Court.  Instead, as previously explained on this blog, the Constitution confers upon the Senate absolute discretion to refuse to consider nominees to the Supreme Court or, for that matter, any other office the appointment to which requires Senate consent.  (See also here). The decision whether and how much to consider a particular nominee is in its nature political and thus a decision for which Senators are accountable to the their constituents, and not the Constitution.  Cf. Marbury v. Madison, 5 U.S. 137 (1803) (distinguishing between the exercise of certain powers, subject to legal constraint, and the exercise of "political" powers, the results of which "are only politically examinable").

None of this is to say that the Senate should decline to consider any particular nominee to the Supreme Court.  However, the Constitution has nothing to do with this question.  The GOP should refrain from republishing unconvincing constitutional arguments, particularly arguments that Republican Senators properly rejected when they declined to consider the nomination of Judge Garland.  The Constitution has not changed since that time. 

Saturday, May 21, 2016

More on the Senate's Absolute Discretion to Refuse to Consider Presidential Nominees

In an excellent essay in the Atlantic, Michael D. Ramsey, the Hugh and Hazel Darling Foundation Professor of Law at the University of San Diego, demolishes claims that Article II of the Constitution somehow requires the Senate to hold hearings and a vote on President Obama's nominee to the Supreme Court, Chief Judge Merrick Garland.   As Ramsey points out, the text of Article II does not mention hearings or a vote, so any such requirement must be found "by implication."  

Ramsey makes three arguments rebutting claims that the Constitution somehow implies such a duty. 

First, several other provisions of the Constitution provide that one branch may propose actions subject to the approval of another.  For instance, the President may propose treatises subject to the Senate's consent.  None of these provisions, with one exception, has been read to require any sort of process before the second body refuses to act. The exception is the so-called "presentment clause" (Article I, Section 7), which provides that the President has only ten days to veto a bill and, if he does so, must given his reasons in writing.  As Ramsey  puts it: "The framers knew how to require formal action if they wanted to; they just chose not to require it in the appointments clause (and elsewhere)." 

Second, Article I, Section 5 of the Constitution expressly empowers the Senate to: "determine the rules of its proceedings."  While the Senate could adopt a rule requiring formal proceedings before rejecting a nominee, it has not done so.  

Third, Article II's appointments clause governs the nomination and possible appointment of all "officers of the United States," including lower court judges and countless executive branch officials. Any requirement of a hearing and a vote would therefore also apply whenever the President nominates an individual to such a position. And yet, the Senate has often declined to provide a hearing or vote to nominees for such offices.  (For instance, Jonathan Adler has explained, the Senate declined to consider over two dozen of President George W. Bush's nominees to various United States Courts of Appeals, including one John Roberts.)  Here Ramsey responds to the claim that the Supreme Court is somehow "different" because the Constitution expressly requires Congress to create this body.  As Ramsey explains, there is no constitutional requirement that the Supreme Court contain nine Justices. Instead, Congress sets the number of Justices and has, over the years, set the number at six, seven, nine or ten justices.  (This blogger notes that the Court that decided Marbury v. Madison, 5 U.S. 137 (1803) consisted of six justices, while the Court that decided Gibbons v. Ogden, 22 U.S. 1 (1824) included seven.)  Declining to consider or confirm a ninth justices does not prevent the Court from performing its constitutional role.

The Atlantic essay is a streamlined version of Ramsey's arguments on this question.  For his elaboration on these arguments on the Originalism Blog, go here, here, here and here.  Go here for this blogger's own take on this question.

William Galston on President Obama's Choice of Reform over Recovery

In a superb op-ed in the Wall Street Journal, entitled "[h]ow Obama's Economy Spawned Trump," William Galston of the Brookings Institution contends that the weak economic recovery that began in 2009 fueled the popular discontent that begat the presumptive Republican nominee. While Galston gives the President credit for securing passage of the 2009 "stimulus package" and formulating the "bailout" of General Motors and Chrysler, he also contends that the President had no follow up plan for bolstering the recovery which, as previously explained on this blog (see also here), has been exceedingly slow. Instead, Galston says, the President chose to spend his scarce political capital on securing passage of the so-called "Affordable Care Act" and regulatory efforts to combat "Global Climate Change."  Had the President remained focused on nurturing the recovery, Galston says, he could have expended his political capital on advocating and securing additional deficit spending on various infrastructure projects, such as highways, thereby further stimulating the economy and bolstering the recovery.

Galston's trenchant analysis bolsters the adage that those who ignore the lessons of history are doomed to repeat it. This is not the first time that a President facing a deep recession has chosen reform over recovery.  In 1933, Franklin Delano Roosevelt secured passage of the National Industrial Recovery Act, his administration's central economic recovery plan.   Among other things the NIRA imposed so-called "codes of fair competition," along with above-market minimum wages and requirements that firms recognize and negotiate with labor cartels also known as unions.  As John Maynard Keynes explained in a letter to the New York Times, the NIRA's wage and price fixing provisions were tools of "Reform and probably impeded recovery."  Subsequent analysis has verified Keynes' prediction, finding that the NIRA's wage-fixing provisions in particular, while furthering what Keynes called "redistribution," also helped deepen and lengthen the Great Depression by several years.  (See here and  here)  If Galston is correct, then President Obama, too, chose reform over recovery, with negative consequences for the nation's overall economic well-being.

At the same time, Galston overstates his case in a couple of ways. First, he likely overstates the impact of the initial stimulus package. For one thing, the $800 Billion package was spread over several years, thus constituting a very small share of overall GDP each year. Indeed, in 2009, Galston himself opined that some of the package's proposed projects would "take effect slowly over many years, muting their stimulative consequences." Like Martin Feldstein, Galston proposed allocating stimulus funds to immediate military spending (see also here discussing Feldstein's proposal.). Moreover, as this blog explained at the time, the net impact of the 2009 package was likely smaller than its nominal price tag, insofar as some such deficit spending simply displaced debt and resulting spending that states would have incurred anyway.  (See this testimony by John Taylor at Stanford, who summarizes research finding such a displacement effect.)  Second, as previously explained on this blog, any claim that the auto bailout was worth the cost does not survive scrutiny.  All in all, however, Galston makes a powerful point.  It would be ironic indeed if the President choice of reform over recovery leads to the election of a President hostile to those reforms.