Restoring Self-Government on Abortion: A Federalism Amendment
Forsythe, Clarke D., Presser, Stephen B., Texas Review of Law & Politics
The abortion issue has increasingly charged and burdened the confirmation hearings of federal judges over the past twenty years since the Senate hearings on Judge Robert Bork's nomination in 1987. Abortion was at the center of the confirmation hearings of Chief Justice John Roberts in 2005 and Justice Samuel Alito in 2006. Senate Judiciary Committee Chairman Arlen Specter asserted that Roe v. Wade was a "super precedent.'"1 Some senators sought to get public commitments that then-Judges Roberts and Alito would support Roe; many voted against them for the sole reason that they would not publicly make such commitments.1 With only five supporters of Roe v. Wade left on the Court, should one of those retire and give President Bush another opportunity to nominate a successor, abortion is certain to be an even more contentious issue at future confirmation hearings.
In the preceding issue of this journal,4 we offered three major reasons why the Supreme Court has tragically failed in its self-appointed role as the national abortion control board. First was the doctrinal incoherence of the Court's abortion decisions. For example, in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court shifted its rationale for the abortion liberty from substantive due process to sociology-the "reliance interests" in abortion as a backup to failed contraception.' The Court, in so doing, ignored the mounting sociological and medical data of the negative impact of abortion on women physically and psychologically. The Court is less competent than the American people and their elected representatives to assess this medical evidence. Second, and related to the First, the Court has been oblivious to the confusion in which it has thrown federal judges and state legislatures over the past thirty-three years because of its vague and contradictory decisions and standards of review. Third, what appears to be the Court's implicit policy of facilitating abortion on demand, far from settling the issue, increasingly conflicts with public opinion and has increasingly roiled not only judicial confirmation hearings, but American politics generally. Curiously, even though it is the Democrats (especially in the Senate) who have demonstrated strong support for Roe v. Wade, since the 2004 elections a growing number of liberal and Democratic political commentators have publicly stated that Democratic candidates and office-holders would be better off without Roe v. Wade.6
Based on decisions in Planned Parenthood of Southeastern Pennsylvania v. Casey and Stenberg v. Carhart? it can still be said that there are at least five votes on the Court that support Roe. Only two Justices have expressly supported overturning Roe.8 Chief Justice Roberts and Justice Alito have taken no public position; while they might be reasonably expected to uphold regulations of abortion, their position on Roe itself is unknown. It is safe to say that they will be under enormous pressure to maintain the status quo.9 Despite the changing Court membership, there are enormous institutional and political obstacles to the overturning of Roe v. Wade, Doe v. Bolton,'10 and their progeny. These obstacles are often ignored, misunderstood, or downplayed by optimistic opponents of Roe.
Sadly, the Court has repeatedly shown itself incapable of thoroughly and objectively reconsidering its handiwork in Roe and Casey. As we indicated in our earlier piece, some legal and institutional reasons for this failure were described by Judge Edith Jones of the Fifth Circuit in 2005 in McCorvey v. Hill.11 The Court has also demonstrated that it is incapable of reconsidering the negative impact of its contradictory and constantly changing standards of review. The changed standard of review in casey immediately injected confusion into the lower courts, and several federal judges expressed frustration with this situation between 1992 and 2005.12 The Court has rejected numerous opportunities to address and attempt to resolve the confusion since Casey. …