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Jeffrey Toobin's Abortion Prediction
Andrew Hyman

CNN’s legal analyst, Jeffrey Toobin, said this 18 months ago: “Anthony Kennedy is retiring.  Abortion will be illegal in twenty states in 18 months.”  This prediction 18 months ago by Toobin has not (yet) come true.  But, from an originalist point of view, it would be great if Toobin’s forecast could ultimately come true.  I emphasize “could” instead of “would” because the original meaning of the Constitution does not require states to do what Toobin fears they would do, and I am not blogging here to support the outcome that Toobin fears.  

We haven’t blogged much about abortion and Roe v. Wade here at the Originalism Blog, although it may well be the central issue in American constitutional law.  In one of our rare mentions of this highly contentious issue, Professor Mike Rappaport said on September 5, 2019 that the U.S. Supreme Court in Planned Parenthood v. Casey “justified its decision to not overturn Roe v. Wade based on stare decisis, but then cut back on the protections the law afforded abortion rights.”  Even though we have not said much more than that about Roe v. Wade this year, we have often discussed the controversial legal doctrines that have been used (or might be used) to justify that decision.  

The primary legal basis of Roe v. Wade is of course the doctrine of substantive due process (SDP), which liberal legal pundits like Toobin would probably despise if it were once again used to attain conservative rather than liberal goals, as happened prior to the New Deal.  SDP was given new life during the 1960s in reliance upon the atrocious precedent of Dred Scott v. Sandford, even though that precedent very probably did not go so far as to employ SDP.   My view has always been that SDP is very probably unconstitutional no matter whether it is used by conservative judges or by liberal judges.  

The SDP doctrine reminds me of a funny scene from one of the great comedic movies of all time (Airplane) in which a long line of passengers uses a variety of different techniques to help another panicked passenger get a grip; someone is always trying to apply one legal theory or another to the Constitution so as to yield desired abortion policy.  If it’s not substantive due process, then it’s the Privileges or Immunities Clause, or the Equal Protection Clause, or the Free Exercise Clause, or the Ninth Amendment, or a fiduciary theory, or the Declaration of Independence, or the Fourth Amendment, or natural law, et cetera.  I have not opposed such theories on the grounds that they would bolster one political result or another, but rather on the grounds that they are unsupported by the original meaning of the Constitution.  Natural law and all of those other things are wonderful, and should always prevail, but unconstrained power to divine natural law was never meant to be a job of the federal judiciary.  As Mark Pulliam correctly stated earlier this year, “the same principles of ‘natural law’ either compel or prohibit abortion rights and gay marriage (to cite just two examples). So much for the Declaration serving as a useful guide to constitutional interpretation!”  

If and when the courts allow non-judges to do more than chat about the million-plus abortions that occur annually in the United States, then there will be many possible policy alternatives to employ, but there is presently no incentive for the “pro-choice” faction to discuss (much less accept) any new compromises. The present situation would quickly change with the overturning of Roe and Casey.  For example, citizens might choose to put the abortion issue entirely in the hands of female voters and legislators, because the issue affects them differently than it affects males (this might or might not require a constitutional amendment).  Or citizens might choose to move the line between lawful and unlawful abortion so that it coincides with the biologically meaningful line between an embryo and fetus, instead of the ever-shifting standard of viability.  Or citizens might apply the prior restraint doctrine, so that abortion is entirely safe for women, who would have to subsequently pay a fine or accept some other disincentive.  Or citizens in a few states might decide that a fetus is simply a worthless blob of cells that warrants no legal protection whatsoever throughout the nine months of pregnancy.  All of these options (except the last one) have no chance of materializing as long as the courts continue to give one faction an advantage, and impose a one-size-fits-all policy on the entire nation, while overlooking that any reliance interests could be easily addressed by delaying the effective date of a court decision modifying abortion precedents (or, equivalently, striking down state legislation on the grounds that it does not delay its effective date).