How to Put the Final Nail in Roe’s Coffin

May 21, 2021 by David Fowler

How to Put the Final Nail in Roe’s Coffin
It is good news that after ten months the U.S. Supreme Court decided to hear an appeal from the decision of the U.S. Court of Appeals for the Fifth Circuit holding unconstitutional Mississippi’s ban on all abortions after 15 weeks, except for those involving “medical emergencies” and “severe fetal abnormalities.” But the question the Court wants the parties to address is limited. Mississippi’s argument drives one nail in Roe’s coffin, but hundreds of state legislators could drive in the final nail. Here’s how.
To better understand what is happening, Mississippi’s argument is addressed to only one of the factors the U.S. Supreme Court said in its 1992 decision, Planned Parenthood v. Casey, would have to be proved by the pro-life community if a long-standing precedent like Roe v. Wade is to be reversed, namely, whether “Roe’s central rule has been found unworkable.”
The answer in Casey was not so much, “Yes, the rigid trimester framework that prevents states from protecting the unborn until the third trimester is unworkable” as it was “fetal viability” is a better standard. That standard essentially asks if the unborn child can survive outside the womb, even if medical care is required.
Mississippi complains that the Fifth Circuit thinks “fetal viability” is a bright-line rule for the constitutionality of state laws, even though other Supreme Court decisions do not seem to consider viability as absolutely controlling. 
Thus, the state’s Petition makes this statement:
“To be clear, the questions presented in this petition do not require the Court to overturn Roe or Casey. They merely ask (sic) the Court to reconcile a conflict in its own precedents.”
So, Mississippi does not directly attack the assumption in Roe and Casey that unborn persons are not “persons” in a constitutional sense.
But Mississippi adds another argument to this. It says that if fetal viability is the bright-line constitutional standard, then it does not adequately take into consideration other reasons the state might have for an earlier ban such as increasing risks to maternal health as the unborn child develops, preventing pain for the unborn child as a consequence of later-term abortions, or avoiding confusion within medical ethics between saving and killing human beings.
Mississippi concludes its argument by essentially saying in a footnote that fetal viability is unworkable and if you can’t figure out a better objective rule, then Roe and Casey should be reversed.
The first nail in Roe’s coffin.

The Final Nail in the Roe’s Coffin

It is possible the Court might be convinced there is “no principled, coherent stopping point between removal of the ‘viability’ standard and flat-out reversal of Roe.” Law professor Gerry Bradley has written that at some point the Court will have to realize this.  
But why not make sure the Court reaches that conclusion by satisfying one of the other factors Casey said the Court would have to consider before reversing Roe?
The other factor is this according to Casey: “Whenever the Court's interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution,” then “its decision requires an equally rare precedential force to counter the inevitable efforts to overturn it …”
Unless this consideration is addressed, and Mississippi did not, the Court, particularly Justice Roberts, might look for a way to adjust the fetal viability standard in Casey, just as Casey adjusted the rigid trimester approach in Roe to arrive at fetal viability.

What specifically is that ‘final nail’?

The First Precedent
The “equally rare” precedent is the Ninth Amendment itself, adopted in 1791, 182 years before Roe. The Court has never construed the amendment, let alone the relationship between it and the Fourteenth Amendment. The Fourteenth Amendment contains not one word indicating the Ninth Amendment was repealed or modified.
That the Ninth Amendment stands undisturbed is important. For reasons I will explain in my forthcoming new book, Recovering the Constitution, the right of all persons, born and unborn, to life was one of the three fundamental rights at common law (the other two being liberty and property) not enumerated in the Constitution. Therefore, according to the Ninth Amendment, that right was among the “others retained by the people.”
The common law, which inexplicitly gets little attention among pro-life legal advocates, is critical to understanding the Constitution. One of the Court’s “rare” precedents makes this clear:
The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.” Smith v. Alabama (1888) (emphasis added)
If you don’t understand the common law, you don’t understand the Constitution. In fact, even today the Supreme Court looks to the common law to interpret words and phrases in the Constitution; it just has not done so in its abortion decisions!

Why is the Ninth Amendment and the common law conception of rights it entails so important? William Blackstone, described by the United States Supreme Court as “the preeminent authority on English law for the founding generation,” put it this way. “[T]he unborn in the mother’s womb, is supposed in law to be born for many purposes.” The common law treated the unborn as persons with respect to all those rights that pertained to their unborn status, life and property/inheritance rights.
The Second Precedent
Another “rare” precedent the Court has failed to consider in its abortion jurisprudence, specific to the Fourteenth Amendment, is Hurtado v. California from 1884. In that decision the Supreme Court said:
Due process of law in the [5th Amendment] refers to that law of the land which derives its authority from the legislative powers conferred upon Congress by the Constitution of the United States, and interpreted according to the principles of the common law. (emphasis added)
Then, with respect to the Due Process Clause in the Fourteenth Amendment, which Roe and Casey relied on, the Hurtado Court said:
The conclusion is . . . irresistible, that when the same phrase was employed in the Fourteenth Amendment to restrain the action of the States [as was used in the Fifth Amendment], it was used in the same sense and with no greater extent.
So, according to the U.S. Supreme Court, due process of law in the Fourteenth Amendment must be understood in terms of the common law and, as noted, at common law, “persons” included the unborn and “life” was understood to be that which was given by God.
The second nail.

Hoisting the Court by its own petard

The Supreme Court closed its decision in Planned Parenthood v. Casey with these words:
Our Constitution is a covenant running from the first generation of Americans to us and then to future generations. It is a coherent succession. Each generation must learn anew that the Constitution's written terms embody ideas and aspirations that must survive more ages. We accept our responsibility not to retreat from interpreting the full meaning of the covenant in light of all of our precedents. (emphasis added)
After 48 years, it is time state legislators make the Court eat its own words by making them deal with the Ninth Amendment and “equally rare precedents” like Hurtado.

What Legislators can do

Tennessee legislators will be given an opportunity to do that, along with legislators from other states, by agreeing to be part of a friend-of-the-court brief in the Supreme Court that raises these arguments. Law professor and common law expert Adam MacLeod and I are already working on that brief. You may recall that Professor MacLeod gave this argument in his testimony to the Tennessee Senate’s Judiciary Committee two years ago.
The “ideas and aspirations” embodied in the Ninth Amendment and precedents like those I mentioned will “survive” if our current generation of legislators will “learn anew” how to use them.
(To learn more about the Ninth Amendment and how it can be used in relation to abortion, watch Mr. Fowler’s remarks on that subject).

David Fowler is an attorney and served in the Tennessee state Senate for 12 years before joining FACT as President in 2006.

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