Supreme Court keeps making up abortion law

Roe v. Wade polls very well in broad outline, and the Supreme Court has affirmed many times its basic holding that abortion must be legal. Yet it still has a problem of democratic legitimacy. Chief Justice John Roberts, perhaps inadvertently, highlighted the problem in his controlling opinion in the court's latest abortion case.

In our form of government, the people are supposed to be the ultimate earthly source of authority. A judicial power to set aside laws that conflict with the Constitution need not undermine this truth. The courts in such a case are giving priority to the people's permanent will, expressed in the constitutional provisions that supermajorities of them ratified, over the transient will of majorities. (We should pause a moment when we label the courts "countermajoritarian.")

That authority and that democratic legitimacy are lacking when the courts strike down laws on the basis of principles or policies that the people can't plausibly be said to have ratified. So it is in the case of abortion, the alleged right to which cannot be found in the text, original understanding, structure, history, or purpose of the Constitution.

"An exercise in raw judicial power" is what Justice Byron White, a John F. Kennedy appointee, called it in his Roe v. Wade dissent. John Hart Ely, a legal scholar who favored legal abortion, saw the defects of Roe right away, writing shortly after it was handed down in 1973, "It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be."

Roe's weakness haunted Planned Parenthood v. Casey in 1992. In that decision, a plurality of the court more or less conceded that the older decision could not be justified as an interpretation of the Constitution, but upheld a modified version of it anyway on the explicit ground that "to overrule under fire" would inflict too much damage on the court's reputation. People would stop believing "in the court's good faith."

The justices expended an enormous amount of rhetorical effort to try to persuade Roe's opponents to quit challenging it already. The Casey decision declared that Roe "calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution."

Millions of Americans who considered abortion a grave injustice were being asked to abandon this conviction, and not in the name of anything actually in the Constitution. They were being asked to abandon it because of something vaguely "rooted in" it, and because the court's refusal to admit error in consequential cases was too important for the operation of our government. It is safe to say, 28 years later, that the gambit didn't work.

Roberts doesn't use the high-flown rhetoric of obedience of his predecessors in Casey, but the message is similar: The people of Louisiana may want this law, they may have voted for officials who enacted this law, this law does not violate the Constitution so far as most of the justices are concerned, but still the people of Louisiana cannot have this law. They can't have it, Roberts says, because of a 2016 decision that a majority of the justices (including Roberts!) say was in error.

Figuring out when a mistaken precedent should govern is a notoriously tricky business. Critics of June Medical have pointed out that Roberts has previously overruled precedents that seemed at least as strong as the one he just followed. It's true that the only way to avoid charges of inconsistency and opportunism is to take Justice Clarence Thomas's view that clearly mistaken precedents never deserve deference. But the abortion precedents pose a particular problem, which is that they themselves don't take precedents seriously.

Casey reworked Roe while reaffirming it, ditching Roe's trimester framework and blocking only those abortion regulations that imposed an "undue burden." In the court's next big decision, in 2000, the authors of Casey disagreed about whether bans on partial-birth abortion were an undue burden. The court ruled they were. In 2007, the court reversed itself on that specific question. Whole Woman's Health altered Casey while purporting to apply it: Now a regulation had to pass a cost-benefit test, too, to be allowed. Roberts's decision in June Medical goes back to Casey while pretending that Whole Woman's Health can't have meant what it says.

The court's abortion rulings are so malleable because they are so obviously not tethered to the Constitution. It provides no guidance about which burdens are undue or how to weigh the benefits of an abortion regulation. So a court that claims to be following it while setting abortion policy will inevitably make up the answers and revise them as it goes.

The unpersuasiveness of the court's rulings wouldn't matter if the underlying issue were an obscure one of interest only to lawyers. But millions of voters continue to believe abortion should be forbidden, and millions more that it should be limited. And so the court continues to grapple with a problem that it created but cannot solve, stuck in a trap from which it obstinately refuses to escape.