Did Last Week’s U.S. Supreme Court Decision Kill Roe v. Wade?

May 1, 2020 by David Fowler

pregnant wife in yellow dress being hugged by husband outside in beautiful landscape
Last week, in Ramos v. Louisiana, the United States Supreme Court gave Governor Lee and the Tennessee General Assembly a precedent that should encourage them to reconsider the “laddered” approach to abortion legislation that the Senate Judiciary Committee approved prior to its COVID-19 induced recess.

The First Reason Ramos Is Important in Regard to Abortion

In Ramos, the U.S. Supreme Court reversed a decision applying the U.S. Constitution’s right to a “trial by jury” in the Sixth Amendment to the states through the 14th Amendment, even though the new interpretation only affected one state.

That’s a mouthful, but just note that the decision reversed was from 1972, the year before Roe v. Wade. The fact that a 1972 decision was reversed is important even apart from the more important reasons why it is the Court refused to apply the doctrine of stare decisis.

Stare decisis is a judicial doctrine—meaning you won’t find it in the U.S. Constitution as a constitutional requirement. The term is derived from the Latin maxim “stare decisis et non quieta movere,” which means to stand by the thing decided and not disturb the calm. In essence, stare decisis is the Supreme Court’s way of counseling itself to exercise caution in reversing its precedents.

But, Justice Kavanaugh, the justice who replaced Kennedy, called attention to this in his concurring opinion, separate from the majority in Ramos:

All Justices now on this Court agree that it is sometimes appropriate for the Court to overrule erroneous decisions. Indeed, in just the last few Terms, every current Member of this Court has voted to overrule multiple constitutional precedents. (emphasis supplied)

In fact, in a concurring opinion last year in Gamble v. United States, Justice Thomas was very frank about the process the Court uses for deciding when to apply stare decisis and how that process is actually used:

The Court’s multifactor balancing test for invoking stare decisis has resulted in policy-driven, “arbitrary discretion” [The Federalist No. 78] that provides a ready means of justifying whatever result five Members of the Court seek to achieve.

Sadly, Justice Thomas’ assessment is correct. That is why basing abortion legislation on fears regarding the application of stare decisis is a crapshoot and shouldn’t be determinative.

Precedent-Based Fear Drives Abortion Legislation

But I strongly suspect that such fear underlies the reason the governor’s advisor(s) proposed abortion legislation that would make it a crime for a physician to perform an abortion at eight weeks. Or at 12 weeks. Or at weeks 15, 18, 20, 21, 22, 23, or 24 weeks.

When you read the legislation, it concedes that Roe and Planned Parenthood v. Casey are binding precedents that limit the state’s power to protect the life of all natural persons from death at the hands of a third party. So, it asks the U.S. Supreme Court, assuming it eventually takes the case, to pick that point at which it will allow the state to protect the natural life of the unborn.

It’s the “Mother May I?” kid’s game with the state asking the U.S. Supreme Court how many steps it can take to protecting the unborn.

I do understand the reason for this approach. When the Senate Judiciary Committee held hearings last August on the “fetal heartbeat” bill, all it heard from the lawyers opposed to it (both pro-life and pro-abortion) was about precedent and stare decisis. It was all about how hard it is to get the U.S. Supreme Court to reverse a prior precedent and any attempt to challenge Roe was improvident because we didn’t have enough justices on the Court willing to vote to reverse it.

The Alternative Approach That Raises a New Constitutional Consideration

To counter these precedents, the Senate had another proposal before it last August (and even now)—the Rule of Law Life Act. It relied on the Ninth Amendment to gain access to the common law meaning of the words life and persons that are used in both the Fifth and 14th Amendments. That those two words—life and person—are in both amendments is critical.

I remember well the words counseling against that idea. Paraphrasing, they were, “No case has ever held that if the Constitution protects a right, then the Ninth Amendment’s protection of common law rights can be used to trump that.”

That statement is correct, but it misses the point when it comes to challenging Roe and an uncritical examination of stare decisis. Ramos mitigates the impact of this counsel against the Rule of Law Life Act.

How Ramos Undermines a Stare Decisis-Based Fear of Directly Challenging Roe

Before I explain Ramos, let me say this again: A direct attack on Roe via a heartbeat bill is improvident. It offers none of the saving graces found in Ramos that actually support the Rule of Law Life Act. Now, why is Ramos important?

Ramos Looked to the Common Law and Blackstone to Define the Constitution’s Words

First, the Court did an extensive examination of the common law, even quoting William Blackstone’s Commentaries on the Laws of England, to determine what the words “trial by jury” in the Constitution mean.

This is exactly what professor Adam MacLeod told the Senate Judiciary Committee last August. MacLeod’s exact words were that Blackstone’s “Commentaries supplied the lexicon and lessons from which American jurists drew at the Founding and for more than a century thereafter.” That last part means that understanding was relevant until after adoption of the 14th Amendment!

The “whereas” clauses in the Rule of Law Life Act cite multiple cases from the 1800s up to last year in which the U.S. Supreme Court did what MacLeod says and now we can add Ramos.

If anyone wants to know what the words “person,” “life,” “liberty,” and “property” in the Sixth and 14th Amendments mean, they can find them in the Commentaries.

Ramos Said the 14th Amendment Adopted the ‘Fairness’ in the Bill of Rights

Second, the Court held that whatever “trial by jury” meant in the Sixth Amendment it had to mean the same thing when it came to the 14th Amendment.

Now, you will not find the words “trial by jury” in the 14th Amendment, but the Court has long since determined that some things are fundamental to an “ordered society” and such a part of “our history and tradition” that they were “incorporated” into the fundamental fairness wrapped up in the 14th Amendment’s requirement that state governments not “deprive any person of life, liberty, or property, without due process of law.”

It is this judicially created concept of fundamental fairness in the 14th Amendment’s Due Process Clause that led to the “liberty” in Roe/Casey to have a doctor kill a common law natural person at another’s behest if the person was in the womb and not “viable.”

The Ramos Logic Applied to Abortion
1. The fundamental fairness in the 14th Amendment’s Due Process Clause incorporates the fundamental fairness concepts found in the Sixth Amendment.

2. What the phrase “trial by jury” means in the Sixth Amendment must mean the kind of fundamental fairness entailed in the Due Process Clause of the 14th Amendment.

3. The meaning of the words in the Sixth Amendment is to be those found in the common law.

4. The words in the Fifth Amendment—“no person shall . . . be deprived of life, liberty, or property, without due process of law”—must, therefore, be the kind of fundamental fairness incorporated into the 14th Amendment’s Due Process Clause by its use of the very same words.

As to those words, we know, without any doubt, what they meant in the Fifth Amendment by looking at the common law and Blackstone’s Commentaries. All of that was contained in professor MacLeod’s testimony and is found in the “whereas” clauses in the Rule of Law Life Act.

At common law and in Blackstone’s Commentaries, a “person” was a “natural person” and included the “child in the mother’s womb.” “Life” was the “right to life” pertaining to all “natural persons.”

That, therefore, is what those words must mean in the 14th Amendment unless the 14th Amendment amended the Fifth Amendment, which it didn’t. If anything, the 14th Amendment only applied to the states what the Fifth Amendment meant at the time.

In other words, the Rule of Law Life Act uses the exact same process used in Ramos to reverse a decision one year older than Roe. And we know the “liberty” to abort in Roe cannot be constitutionally correct because it not only goes beyond the common law meaning of the word “liberty” in the Fifth Amendment, but this new-fangled Court-created definition of liberty creates a direct and absolute conflict with what we know the words “person” and “life” meant in the Fifth Amendment.

The Fifth Amendment has never been amended, and there is no historical evidence that anyone ratifying the 14th Amendment’s Due Process Clause intended for it to mean more than what that same clause meant in the Fifth Amendment. None.

And the best part? Not only did new Justice Kavanaugh agree with the analysis by Justice Gorsuch I just explained, but so did liberal, pro-abortion Justices Ginsburg, Breyer, and Sotomayor! 

The Supreme Court just used the reasoning process used in the Rule of Law Life Act that, if applied consistently, would abort Roe as precedent!

Let’s pray that Governor Lee and the Tennessee Legislature will have the courage to try to get to the U.S. Supreme Court using the logic in Ramos and in the Rule of Law Life Act, and let’s see how the five justices who hold to original intent squirm out of the reasoning just accepted by even three of Court’s liberal justices.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. 

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