The Crossover Podcast (Thursday 19 May 2022): Ricardo Komotar and Larry Catá Backer Discuss the End of Roe v. Wade and the Turbulence Left in its Wake

 

 

It was a great privilege to have been invited onto the Crossover Podcast hosted by Ricardo Komotar.  The topic of our discussion was the possible end of the constitutional protection (such as it is) of a woman's autonomy with respect to issues around pregnancy and (especially) its termination which was announced in an irregular way through the the leak of the draft opinion in Dobbs v. Jackson Women's Health Organization. My initial thoughts on the questions I was asked to consider in preparation for the conversation might  be accessed HERE). 

The  entire conversation may be accessed HERE. 

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I take this opportunity to VERY briefly sketch seven issues around which our conversation was woven.

1. IDEA OF ROE (rights as a political concept) Vs the JURISPRUDENCE OF ROE (debate over state regulatory policy) [long term strategic consequences of reframing the Debate (evident from the early 1990s—Calvo and Rosenstone 1989 Pilot Study].  

--This was the essence of the move from centering rights based discourse in Roe, to the discourse of state authority in Casey (1992) and its "undue burden test." --With rights detached from governance it was then possible to detach the political conversation around fundamental rights from the jurisprudence of institutional integrity and the allocation of power.
--Revert to federalism and reasonable basis approach (slip op. 65- et seq);
--Detached from rights discourse and attached to a discussion of federalism; it was easier to avoid the bother of a jurisprudence of right and replace it with that of institutional allocation of power with its infinitely forgiving so-called "reasonable basis" standard of review of the  validity assertions of power(slip op. 66).

2. Dormant Commerce clause and extraterritorial reach of state bans?

--Burden on interstate commerce versus protectionism versus public policy—

Will likely affect advertising and actors entering BAN state to facilitate travel to NO BAN states.

--1st Amendment Implications: Commercial Speech jurisprudence
--Had been some writing about using Dormant Commerce dastards to attack targeted regulation of abortion provider rules (TRAPs).

3. Right to Travel and state control of terminations 

--Here one enters the world of state barriers to national coherence and coordination targeting activities between people of different states, one of which makes available what the orther bans

--conspiracy, complicity, aiding; private attorney general provisions and the like

--The BATTLE OF THE STATES is already emerging  (from Bloomberg 4 May 2022):

Missouri S.B. 8, Missouri state Rep. Mary Elizabeth Coleman (R) introduced a proposal in December to allow private citizens to sue anyone who performs an abortion or helps a pregnant person obtain one, even if the procedure takes place outside Missouri.

2005 untested Missouri law: the state passed a law that created a civil cause of action against anyone who helps a minor get an abortion without parental consent or a judge’s permission, even if the abortion takes place in another state that doesn’t require it. Narrowed to state terminations by local Supreme court

California, S.B. 1142, which would provide funding for out-of-state residents who may travel there for an abortion, is scheduled for a May 9 hearing in the Senate Appropriations Committee. California lawmakers are also considering a measure to shield those who help a pregnant person travel to the Golden State for an abortion from getting sued.

Connecticut lawmakers passed a bill (H.B. 5414) to shield providers and anyone who travels to the state for an abortion from lawsuits or out-of-state investigations and prosecutions. The law would allow anyone sued by a state that bans abortion to countersue in Connecticut for damages and attorneys’ fees.

4. Religion Clauses: Mostly Free Exercise but perhaps Establishment

--Federal Law protections would include exceptions for Free Exercise under Federal RFRA and Religion Clause standards
--State BANS subject to State RFRA (Irony here is that most state RFRAs are in states likely to BAN terminations).
--Do the bans favor one religion over another and thus violate Establishment Clause (to the extent that I t is driven by privileging one Religion’s views).
--All sorts of subsidiary issues with ambiguity in the jurisprudence ((1) what/where is religious belief under RFRA and under Constitution (need not be the same thing); (2) what is the nature of strict scrutiny applied (how to value state interest); (3)to what extent must the state protect religious practices and belief in the face of a purportedly secular statute; etc; (4) neutrality and general applicability issues (Alito ironically has been a strong advocate of broad protection of religions easily finding lack of neutrality or general applicability).

5. Authority in Constitutional Interpretation
--What is left of STARE DECISIS? Slip op. 35-65 

--The end effectively of stability; or the weakening of the embrace of notions of Supreme Court opinions with legislative effect (Cooper v. Aaron)

--Resurrection of Ed Meese’s argument that it is a shred authority (Tulane Law Review 1986).
--What is the role of interpretation: find the right answer (Precedent weakened (Dobbs)) or the plausible answer (precedent strengthened (Casey)).
--Judicial SUPREMACY: One has to obey Supreme Court Precedent (inferior courts certainly burt maybe also everyone else (Cooper v. Aaron) BUT NOT THE COURT ITSELF. That may affect the dynamics of constitutional litigation
--The NEW STARE DECISIS: TEST FACTORS(slip op. 6):

-“wrong from the start”
-“reasoning exceptionally weak”
-“decision has damaging consequences”
-“fails to produce a national settlement of the issue”

--What is left of the regulatory nature of constitutional interpretation? The better practice now appears to be to refuse to recognize interpretations with which one disagrees and demand reconsideration--over and over--until the conditions for abandonment of the initial (wrong) interpretation occurs. 

--No way out of the resulting jurisprudence trap

6. What is left of Substantive Due Process
--Dobbs draft suggests Roe is a special case; but Dobbs also says one has to get precedent “right”—so not clear what shifting majorities may seek to entertain in the coming years (contraception, Same sex marriage; decriminalization of certain sexual acts, etc.; adultery and fornication laws).
--Dobbs slip op at 5: “any such right must be ‘deeply rooted in this Nation’s history and tradition’ AND ‘implicit in the concept of ordered liberty’” citing Washington v. Glucksberg
--The history and traditional test at the forefront: “we must guard against the natural human tendency to confuse what that Amendment protects without own ardent views about the liberty that Americans should enjoy” Dobbs slip op. at 13. 

--Strategic history and semiotic meaning making: (1) where does history start? (2) whose history? Through what lens is it interpreted? Is history the history of opinion or facts of everyday life? Etc. One gets a sense of that from the dismissive tropes used to counter arguments made that history might have an alternative meaning (slip op. 25-30).

-Thus the question for every case: what history?: Dobbs relies on the official history of acts and governmental measures stretching back several hundred years; it ignores history going back to the foundations of Western culture (Rome); and it ignores the social history of abortion and the role of women in giving the effect. The art of instrumentalizing history strategically has been  a weak underbelly of jurisprudence in the US (lawyers make bad historians but better ideological philologists or semioticians) 

--The status of rights embedded in other rights slip op. 30- 32 is rejected. Abortion unique; though that is likely to be tested in subsequent cases.

7. NEXT UP The CONVERSE OF ROE
--Strategies to invert Roe to develop a constitutional protection for life beginning at conception.
--The next big target: the 20th century adminbistrative state and the narrowing of federal authority

8. THE LEAK:

--A court that styles itself a political instrument cannot be surprised if politics creeps into not just its jurisprudence but also its working style.

--CROWDSOURCING JURISPRUDENCE cannot be far off; the Amicus brief as an elitist tool for those with clout--populism in jurisprudence that is more overtly political requires direct connection to the masses; tech makes that now possible.

There were many more questions than answers; and substantial concern about the state of the judicial project and its interposition within the framework of American government--not because it is bad or good, but because it appears now  affect the stability and prosperity of the nation in important ways. Nonetheless, though rich, our conversation was just the start of a very complicated conversation that will touch on virtually every aspect of American life--pulling on the string of Roe v. Wade is an invitation to unravel the bulk of the fabric of American institutional life crafted since the first third of the last century.  There are those who relish this prospect; many don't--whatever their view of the relationship between women, the state, and the state of their reproductive choices. 

As I finished reading the draft opinion in Dobbs, and no doubt as I will finish each of the several concurring and dissenting opinions that this draft will produce, I could not help but return to what for many may be a higher source of insight--to Job 38:2-4 (KJV):

2Who is this that darkeneth counsel
By words without knowledge?
3Gird up now thy loins like a man;
For I will demand of thee, and answer thou me.

4Where wast thou when I laid the foundations of the earth?
Declare, if thou hast understanding.

 We now seem to be in an age where the temptation to make such declarations appears irresistible.