Why the right to elective abortion fails Casey's own interest-balancing methodology - and why it matters.

• Author: Gilles, Stephen G.
• Position: Introduction through III. Reasoned Judgment: Evaluating the State's Interest in Pre-Viable Fetal Life in Casey's Terms A. Even Assuming That the Pre-Viable Fetus Is Not Yet Normatively Human, Its Intrinsic Value as New Life That Is Becoming Human Gives the State an Overriding Interest in Protecting Its Life, p. 691-728

INTRODUCTION

In Planned Parenthood of Southeastern Pennsylvania v. Casey, a five-justice majority, relying heavily on stare decisis, reaffirmed the Supreme Court's earlier holding in Roe v. Wade that a woman has a constitutional right to an elective abortion prior to fetal viability. (1) In reaffirming that holding, however, Casey also restructured the right and placed it on a different foundation. Roe had declared that the right to elective abortion was "fundamental," that only a compelling state interest could justify overriding it, and that the state's interest in protecting fetal life was not compelling until viability. (2) Subsequent decisions strongly suggested that state laws regulating pre-viability elective abortions were subject to strict scrutiny. (3) Under Casey, although the woman's liberty interest in an elective abortion is specially protected, (4) the right to an elective abortion is not grounded in a judgment that it is "fundamental." (5) Instead, it is grounded in an interest-balancing judgment that the woman's liberty interest in an elective abortion outweighs the State's interest in protecting pre-viable fetal life. (6)

Remarkably, however, the Casey Court did not affirm that interest-balancing judgment on the merits. Instead, it asserted that "the reservations any of us may have in reaffirming the central holding of Roe are outweighed by the explication of individual liberty we have given combined with the force of stare decisis," (7) Moreover, in the belief that Roe had given too little weight to the state's interest in protecting fetal life, Casey rejected Roe's trimester framework and strict scrutiny of pre-viability abortion regulations in favor of the less stringent undue-burden standard, which invalidates such regulations only if they have the purpose or effect of substantially interfering with women's access to elective abortions. (8)

Under Casey, then, the right to elective abortion is an unenumerated substantive due process right that rests on an interest-balancing judgment derived from Roe and applied--but not affirmed on the merits--in Casey. The Casey dissenters argued that the Constitution authorizes the Court to recognize "fundamental" substantive due process rights only if they are "deeply rooted" in our history and traditions, and that the right to elective abortion plainly fails that test. (9) In reply, the Casey Court made no attempt to defend Roe's much-criticized history of abortion in Anglo-American law, or Roe's treatment of the right to elective abortion as fundamental. Instead, Casey argued that, in adjudicating substantive due process claims, the Court is authorized--indeed, required--to arrive at a "reasoned judgment" as to "the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society." (10) Thus, the hallmark of Casey's approach to substantive due process is a "reasoned judgment" arrived at through interest analysis, and informed but not dictated by history.

In this Article, I argue that--setting aside stare decisis--the right to elective abortion is unsound in Caseys own terms. Specifically, I assume the validity of Casey's "reasoned judgment" approach to identifying unenumerated rights, including the interest-balancing methodology Casey used to reconceive the right to elective abortion. (11) Moreover, I assume that Casey (like Roe before it) is correct in characterizing the pre-viable fetus as "potential life" rather than as an actual, normatively human being. (12) These are obviously unfavorable premises on which to argue against a right to elective abortion. But that is precisely the point. My thesis is that even when an interest-balancing analysis is conducted on terms generally favorable to recognizing a constitutional right to elective abortion, a persuasive case can be made that the state's interest in protecting the life of the pre-viable fetus outweighs the woman's liberty interest in terminating her pregnancy.

Viewed as a contribution to reproductive-rights scholarship, my analysis develops a new line of argument about how best to interpret Casey and implement its interest-balancing approach, as well as a new argument that the very right Casey reaffirmed on stare decisis grounds is substantively unsound. Most scholarship challenging the right to elective abortion either denies the legitimacy of unenumerated rights not anchored in tradition, (13) or disputes the Court's assumption that the pre-viable fetus cannot be shown to be a normatively human being. (14) This Article, by contrast, contends that even if these premises are assumed to be correct, the right to elective abortion prior to viability is unsound in light of the importance of what Casey recognizes as the state's interest in enabling the fetus to "become [the] child" into which it is naturally developing. (15)

Nevertheless, viewed as an argument that the contemporary Supreme Court should consider, it is a fair question whether this entire exercise is futile. Casey relied on stare decisis and the importance of the woman's protected liberty to reaffirm the right to elective abortion, whether or not the interest-balancing judgment on which that right rests is correct on the merits. (16) If we canvass today's Court, we find that two Justices (Ginsburg and Breyer) have endorsed the right to elective abortion on the merits, (17) two more Justices (Sotomayor and Kagan) likely share that view, (18) one Justice (Kennedy) accepts the right to elective abortion as a matter of stare decisis, (19) two Justices (Roberts and Alito) would likely reject it as an original matter, but could conceivably adhere to it as a matter of stare decisis, (20) and two Justices (Scalia and Thomas) reject it as an original matter and would overrule Roe and Casey regardless of stare decisis. (21) Given this lineup, it seems clear that, as was true in Casey, Justice Kennedy provides the fifth vote to preserve the right to elective abortion--in his case, for reasons of stare decisis. Why bother, then, to make the constitutional case that the State's interest in "potential human life" outweighs the woman's interest in an elective abortion?

My answer has two parts. First, the composition of the Court could shift sufficiently that a majority of the Justices would be willing to consider overturning the right to elective abortion. (22) Were they to do so, the arguments presented in this Article might persuade Justices who agreed with Casey's "reasoned judgment" approach to substantive due process, but were uncertain whether the balance of state versus individual interests truly supports a right to elective abortion. By contrast, the arguments against the right to elective abortion advanced by the dissenters in Casey would fail to persuade any such Justice, because they are predicated on a more restrictive conception of the Court's role in recognizing unenumerated substantive due process rights.

Second, although Justice Kennedy appears committed to preserving the right to elective abortion, it does not follow that he would be unwilling, in an appropriate case, to reexamine the validity of the interest-balancing judgment on which the right to elective abortion now rests. As we'll see, the evidence from Casey strongly suggests that Kennedy harbors grave doubts about whether the woman's interest in an elective abortion actually outweighs the State's interest in protecting the life of her pre-viable fetus. (23) In Casey, however, he and the other authors of the joint opinion (Justices O'Connor and Souter) declined to explain how each of them would have ruled on this issue had it come before them as an original matter. (24) It is too late for Justices O'Connor and Souter to explain their views as sitting Justices, but not for Justice Kennedy to explain his. Nor would any such explanation require him to vote to overrule Casey or overturn the right to elective abortion. Kennedy could simultaneously adhere to his position that stare decisis requires preserving the right to elective abortion, and write or join a "reasoned judgment" explaining why the State's interest in protecting the previable fetus outweighs the woman's interest in an elective abortion. (25)

Doing so, of course, would expose Justice Kennedy to intense criticism from both defenders of the right to elective abortion (for publicly undermining it), and from its opponents (for nevertheless preserving it via stare decisis). On the other hand, as I will now explain, this approach would also enable Kennedy to make common cause with the four generally conservative Justices in crafting an abortion jurisprudence that more persuasively justifies the interpretation of Casey that Kennedy has championed. And it would prevent the erroneous constitutional judgment on which the right to elective abortion now rests from distorting the Court's consideration of related issues involving state regulation that seeks to protect post-conception fetal life.

Just as the Court is deeply divided over the very survival of the right to elective abortion, it is deeply divided when it comes to interpreting Casey. No Justice disputes that the entire joint opinion in Casey is controlling law, (26) that Casey reaffirmed Roe's "essential holding," (27) and that under Casey, regulations of pre-viability abortions are unconstitutional if they impose an undue burden on women's access to elective abortions. (28) But apart from those core principles, the Court is for now divided into two camps. Justice Kennedy adheres unwaveringly to an interpretation of Casey that gives states much greater freedom to regulate pre-viability abortions than Roe's strict-scrutiny regime did. (29) For Kennedy, a crucial feature of Casey was the plurality's conclusion that Roe and later decisions seriously undervalued the State's "legitimate and substantial interest in preserving and promoting fetal life." (30)...