The Court after Scalia: We need a new Justice like Scalia to help end the abortion-distortion effect

James Bopp, Jr., and Richard E. Coleson are attorneys with The Bopp Law Firm, PC.

The topic is how Supreme Court jurisprudence on “reproductive rights” might change if a “conservative nominee” succeeds Justice Antonin Scalia. We focus on abortion jurisprudence because that was at issue in Whole Woman’s Health v. Heller­stedt and other “reproductive rights” are less litigated. We understand “conservative” to mean having Scalia’s judicial philosophy.

While current Court members remain and the “undue burden” test reigns, a conservative successor would change the outcome of an abortion case where Justice Anthony Kennedy (i) sees no undue burden and (ii) is the swing vote. For example, in Stenberg v. Carhart, Kennedy saw no undue burden but was not the swing vote, being with Scalia in the five-four dissent against striking Nebraska’s partial-birth-abortion ban. In Gonzales v. Carhart, Kennedy saw no undue burden and was the swing vote, so he wrote a five-four opinion upholding a federal partial-birth-abortion ban. In Hellerstedt, Kennedy saw an undue burden and was the swing vote, so he joined a five-three opinion striking Texas’s regulation of abortionists and abortion clinics.

But vote tallies and swing-vote roles change as members change. Given expected changes, a conservative successor is needed to sooner achieve a majority to stop the abortion-distortion effect, whereby the Constitution and normal rules of law are bent to protect abortion as a super-right. Conservative advocates on the Court are also needed to persuade peers because members change sides, as Chief Justice Warren Burger did in Thornburgh v. American College of Obstetricians and Gynecologists, and create new tests, as Justices David Souter, Sandra Day O’Connor, and Kennedy did with the undue-burden test in Planned Parenthood of Southeastern Pennsylvania v. Casey. Even in dissent, conservative members may help temper the abortion-distortion effect by identifying it, requiring attempted justification by the majority.

A true “conservative” successor would have Justice Scalia’s judicial philosophy. Scalia provided key features in his 1989 essay, The Rule of Law as a Law of Rules, exploring the “dichotomy between ‘general rule of law’ and ‘personal discretion to do justice.’” He quoted Aristotle’s advocacy for rule of law as a law of general rules, as follows:

Rightly constituted laws should be the final sovereign; and personal rule, whether it be exercised by a single person or a body of persons, should be sovereign only in those matters on which law is unable, owing to the difficulty of framing general rules for all contingencies, to make an exact pronouncement.

With Aristotle, Scalia favored general legal rules over judgments based on “the totality of the circumstances or by a balancing of all the factors involved.” He identified values of a “law of rules” as including “the appearance of equal treatment,” “predictability,” “judicial restraint,” and “embolden[ing]” courts to “stand up to what is generally supreme in a democracy: the popular will.” A judge engaged in a balancing or total-circumstances test “begins to resemble a finder of fact more than a determiner of the law,” he wrote, and “reach[ing] such a stage is . . . an acknowledgment that we have passed the point where ‘law,’ properly speaking, has any further application.” Scalia said it was easier for him to abide by general rules because he was “more inclined to adhere closely to the meaning of a text” and, “in the constitutional field, . . . to a more or less originalist theory of construction.” He provided an example in Michael H. v. Gerald D., in which he proposed limiting the history-and-tradition test for Fourteenth Amendment liberties to “the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified.” O’Connor and Kennedy did not join that part of Scalia’s opinion, allowing for protected liberties to be found at higher levels of generality. Absent such restricting rules, courts may (per Justice John Marshall Harlan) “roam[] at large in the constitutional field.”

Under originalism, there is no Fourteenth Amendment abortion “liberty” because, as Roe v. Wade acknowledged, when the amendment was ratified in 1868, abortion was widely illegal (with maternal-life exceptions). It was illegal because of the physicians’ crusade to conform the laws to the recent scientific discovery that individual human life begins at conception (not quickening). The notion that “liberty” is an empty vessel to be filled by judges’ perceptions of the urgent issues of the day does not promote “law of rules” values and subjects the Court to the pressure Casey sought unsuccessfully to curtail by seeking consensus around its new test.

Debate over constitutional interpretation and neutral application of general rules has been fierce in abortion cases. The seven-two Roe decision was widely criticized by constitutional scholars. For example, Roe is “a very bad decision,” wrote John Hart Ely, “because it is not constitutional law and gives almost no sense of an obligation to try to be.” In cases after Roe, the Court reneged on the strength of interests Roe recognized as “compelling” and on regulations it said were permissible. Cases routinely bent legal rules to accommodate abortion as a super-right, e.g., allowing abortionists to assert women’s rights though women were plaintiffs in both Roe and its companion case, Doe v. Bolton. Meanwhile, the pro-Roe majority began to decline.

After O’Connor joined the Court, City of Akron v. Akron Center for Reproductive Health was a six-to-three decision. Dissenting, she said Roe’s trimester scheme was “on a collision course with itself,” “the State possesses compelling interests in the protection of potential life and in maternal health throughout pregnancy,” and precedent required a threshold “undue burden” test (absent an undue burden, states need only show “‘some rational relationship to legitimate state purposes’”). Thorn­burgh was five to four, with Chief Justice Burger saying that if this new super-right is what Roe meant, then Roe should be reconsidered and reversed.

The arrival of Scalia and Kennedy caused widespread expectation that a majority would return abortion regulation to the states. In Webster v. Reproductive Health Services, numerous amicus briefs debated abortion history, constitutional analysis, and reversing Roe. The United States again called for overruling Roe. The Court upheld the Missouri provisions by a vote of five to four, with previous majority members dissenting in part. But O’Connor said Roe’s viability need not be reached and no “undue burden” was at issue. Scalia said Roe was at issue and should be overruled.

In Casey, Roe was not reversed. Rather, the controlling Souter-O’Connor-Kennedy joint opinion tried to impose consensus by insisting that respect for precedent required reaffirming Roe’s abortion liberty (regardless of their personal views about Roe if they had been considering it initially), replacing the trimester scheme with an undue-burden test pre-viability, and post-viability allowing abortion bans (with life and health exceptions). This was supposed to get the Court out of the national-medical-board role. In a four-member dissent, Chief Justice William Rehnquist, joined by Justices Byron White, Scalia, and Clarence Thomas, called for reversing Roe. And Scalia, joined by the other three, defended his Michael H. rule as “merely observ[ing] that, in defining ‘liberty,’ we may not disregard a specific, ‘relevant tradition protecting, or denying protection to, the asserted right.’” However, he continued, “the Court does not wish to be fettered by any such limitations on its preferences.” And he explained that all of the public pressure that the Court decried was the Court’s own fault for deciding on the basis of mere “value judgments,” and “[t]he people know that their value judgments are quite as good as those taught in any law school—maybe better.” He concluded that Casey would bring no more consensus than the effort to rally a divided nation around Dred Scott.

Scalia was prescient. Casey brought no consensus, and its matter-of-law, undue-burden test was revised in Hellerstedt, with Kennedy’s help, to create a factual balancing test that puts federal courts back in the national-medical-board role. As demonstrated in our Hellerstedt amicus brief, under Casey’s test, the quality standards for abortionists and abortion clinics were related to the maternal-health interest as a matter of law, which should have sufficed. Justice Samuel Alito authored a three-member dissent demonstrating the abortion-distortion effect in the bending of normal claim-preclusion, evidence, and severability rules. And Justice Thomas explained the root flaw in “the very notion that some constitutional rights demand preferential treatment,” quoted Scalia about “[t]he illegitimacy of using ‘made-up tests’” “to achieve [a] desired result,” and quoted Scalia’s essay: “The majority’s embrace of a jurisprudence of rights-specific exceptions and balancing tests is ‘a regrettable concession of defeat—an acknowledgment that we have passed the point where ‘law,’ properly speaking, has any further application.’”

A conservative practitioner of the rule of law as a law of rules will help to end the abortion-distortion effect. An originalist will bring us closer to the day when regulation of abortion is returned to the states, where the Constitution left it, so the process of reaching social consensus may continue. As Scalia said in Casey:

[B]y foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.