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Precedents and Rehnquist’s Webster Gambit

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Professor B says:

It seems reassuring to have Roberts say that he believes Roe to be settled law, and that he doesn’t think that disagreeing with the logic of a finding is just grounds for overturning a precedent; but holding out the possibility to overturn precedents because it has proven “unworkable,” or, more importantly, because it has been “eroded” worries me a great deal. The fact is, Roe has been eroded over time, with parental notification laws, banning intact dilation and extraction, requiring women to undergo waiting periods, requiring them to be notified (untruthfully) that abortion causes health problems, and so on.

Her instincts here are sound, and let me elaborate a little. As Prof. B implies, there are a lot of ways of effectively overturning a precedent without doing so explicitly. To make a crucial distinction, I don’t believe the regulations that the court is willing to uphold under Casey constitute a de facto overruling of Roe. For the most part these regulations, while very bad, affect abortion rates less than you might think. There is a very important difference in practice between legal-but-regulated abortion and more comprehensive bans (including requirements that a woman get approval from a committee, etc.) However, it is certainly possible that the Court could permit states to place much stricter regulations on abortion without overturning Roe. As it happens, I just had to finish an encyclopedia entry about Webster v. Reproductive Health Services, the 1989 case in which Rehnquist tried to overturn Roe sub silento. Here’s a slightly longer version of the relevant portion of my draft:

The initial strategy of Chief Justice Rehnquist was to propose an opinion that would uphold the Missouri law and implicitly but not explicitly overrule Roe. Perhaps in an attempt to secure the crucial swing vote of Sandra Day O’Connor, Rehnquist proposed replacing the “trimester framework” of Roe with a standard that would permit any state regulation that reasonably furthered “the state’s interest in fetal life,” but argued that because the regulations of the Missouri law were constitutional under the new standard there was no need to address the question of whether Roe remained good law. Rehnquist’s strategy, however, failed, as it was widely recognized that the new standard would permit virtually any regulation of abortion. O’Connor, while willing to replace the “trimester framework,” argued for a standard that would permit abortion regulations that did not constitute an “undue burden.” Nor did the attempt to avoid overturning Roe directly fool Roe’s strong supporters on the Court. John Paul Stevens circulated a memo angrily criticizing Rehnquist’s opinion: “If a simple showing that a state regulation ‘reasonably furthers the state interest in protecting fetal life’ is enough to justify an abortion regulation, the woman’s interest in making the abortion decision apparently is given no weight at all. A tax on abortions, a requirement that the pregnant woman must be able to stand on her head for fifteen minutes before she can have an abortion or a criminal prohibition would each pass your test…As you know, I am not in favor of overruling Roe v. Wade, but if the deed is to be done I would rather see the Court give the case a decent burial instead of tossing it out the window of a fast-moving caboose.”

Rehnquist’s attempt to overturn Roe through the back door failed, but only because a majority of the Court didn’t support that substantive outcome. What many readers may not be aware of is that avoiding the overt overturning of precedents is fairly common. Brown v. Board did not explicitly overrule Plessy, for example, and the New Deal cases that effectively overturned Lochner-era precedents sometimes went to nearly comical lengths to avoid explicitly overturning precedents. Since there’s always some way to distinguish individual cases, it’s not difficult to do. (There’s a certain logic with respect to Brown, in that the opinion emphasized the unique status of education, while Plessy was about segregation on trains–but, of course, the Court then cited Brown in summary judgments overturning every other form of segregation law.) So it’s important not to be too reassured by claims that Roe is settled law; not only is Roberts not bound to anything he says, but there’s more than one way to skin a precedent.

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