Judicial oligarchy is the wrong way to decide abortion policy
By: Rob Natelson
Nine state legislatures recently have passed laws restricting abortion. Those laws may be good or bad. That’s a different question from whether they violate the Constitution.
Part of being an adult is knowing the difference between what you’d like the law to be and what it really is. Lawyers and judges who forget that lesson commit malpractice. Citizens who forget it may face criminal penalties.
Unfortunately, our law school faculties and federal appeals courts contain many people who have little real world experience. In understanding the difference between what the law is and what they want, they have never fully grown up. The fault is particularly egregious when applied to “the supreme Law of the Land”—the U.S. Constitution.
The Constitution does not address abortion. Its general terms grant federal agencies and courts little authority over the subject. During the debates over whether to ratify the Constitution, the Founders explained that state legislatures retained exclusive authority over issues of health, morality, religion, and domestic conduct.
In 1791 we added the Bill of Rights to the Constitution, and in 1868 the 14thamendment. The Bill of Rights provides that the federal government may not deprive any person “of life, liberty, or property, without due process of law.” The 14th amendment extended that rule to the states.
This “due process” language derived from a centuries-old English tradition. It meant that when the government proceeds against a person, the government must follow pre-set rules, whatever those rules may be. The government may not prejudice the person by making up new rules as it goes along.
That’s all the Due Process Clauses meant. Our Founders recognized other important rights, but in the Constitution they listed them separately. Unlisted freedoms were left to state bills of rights and the political process. Abortion was unlisted.
As time went on, the Supreme Court began to assume more power. One way it did so was to pretend that the Due Process Clauses granted the court authority over laws affecting individual actions. Since almost all laws affect individual actions, this was a claim of enormous scope.
Eventually the court labeled individual actions “liberty interests.” These included not only such constitutionally-recognized rights as free speech, but all other personal decisions: sexual behavior, family decisions, employment contracts, and many others. If a law regulated a decision, the court assumed power either to uphold it or to void it in the name of “due process.” This judicial activity became known by the oxymoronic name, “substantive due process.”
On paper, the court developed legal formulae for judging whether a law met “due process.” In reality, the court’s decision usually has been political: It ignores previously-stated formulae whenever it wants to.
The court has never applied scientific or truly objective criteria to its substantive due process jurisprudence. Instead, the justices rank liberty interests by how much they like them (“fundamental”, “not fundamental”) and government policies by how much they like them (“compelling” “important,” “rational” or “irrational”). How much the court favors each varies with who is on the court.
Before 1973, abortion rules were set by state legislatures. In some states, the laws were liberal; in others they were restrictive. If there was a national consensus, it was that abortion was usually wrong but did not rise to the level of murder. Over time, legislatures tailored abortion rules to expanding knowledge and changing attitudes. For example, in the late 19th century the laws became more restrictive as physicians learned about pre-natal human development. In the mid-20th century, abortion laws tended to become more liberal as sexual mores eased.
In 1973 the Supreme Court “aborted” this process. In Roe v. Wade it pretended that laws against abortion before a certain point in pregnancy violated “due process” and that laws after that point complied with “due process.” The court eventually elevated itself to supreme authority on every abortion rule in America. Yet the justices have no special expertise in medicine, sociology, domestic relations, or even morality. Their sole expertise is working with legal materials.
As a result, on abortion policy America has ceased to be a democracy and has become a judicial oligarchy.
If we are to have a free and prosperous country, we must honor the rule of law—and “we” includes especially the judges. That requires applying the Constitution honestly. Which requires overruling Roe v. Wade.