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There is No Silver Bullet to Overturning Roe v. Wade

by Paul Linton | Washington, DC | LifeNews.com | 10/6/11 3:42 PM

Opinion

Introduction

At a Labor Day forum sponsored by the “Tea Party” for the Republican candidates for president, one of the panelists, Professor Robert George, asked the five candidates who participated whether, in an effort to overturn Roe v. Wade, 410 U.S. 113 (1973), they would support Congressional legislation to declare the unborn child a “person,” as that word is used in § 1 of the Fourteenth Amendment to the United States Constitution.

Section 1 provides, in part, “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”  The purported authority for such legislation is § 5 of the same Amendment which provides that “Congress shall have power to enforce, by appropriate legislation, the provisions of this article [referring to the Fourteenth Amendment].”  Three of the candidates–Rep. Michele Bachmann, former Speaker Newt Gingrich and businessman Herman Cain–said that they would support such legislation; one–Rep. Ron Paul–said that the issue of abortion is one for the States, not the federal government, to decide; and one–Gov. Mitt Romney–indicated that he opposed such legislation because it would precipitate a constitutional crisis between Congress and the Supreme Court.  At the same forum, the candidates were also asked whether they would support Congressional legislation removing the appellate jurisdiction of the Supreme Court over cases challenging abortion regulations.

The underlying assumption of both questions is that legislation defining the “unborn child” as a “person” for purposes of the Fourteenth Amendment or, alternatively, removing the appellate jurisdiction of the Supreme Court over abortion cases would effectively overturn Roe v. Wade.  That assumption is simply wrong.  Neither approach would have that effect and the latter one–removing the appellate jurisdiction of the Supreme Court–would have very unfortunate, but very foreseeable, consequences.

Defining the Unborn Child as a “Person”

In Roe v. Wade, the Supreme Court held that the unborn child is not a “person,” as that word is used in § 1 of the Fourteenth Amendment and, therefore, is not entitled to the due process and equal protection guarantees the Amendment confers upon “persons.”  410 U.S. at 156-59.  Could Congress, acting under § 5 of the Amendment overturn that holding?  The answer is clearly no.

The Supreme Court has held that  “Congress may not legislatively supersede our decisions interpreting and applying the Constitution.”  Dickinson v. United States, 530 U.S. 428, 437 (2000).  In Dickinson, the Court struck down a Congressional statute attempting to overturn the standards for determining the admissibility of confessions established by the Court in Miranda v. Arizona, 384 U.S. 436 (1966) (requiring the police to provide a criminal suspect in their custody with certain warning before questioning him).  Dickinson, to be sure, did not involve an exercise of Congressional authority under § 5 of the Fourteenth Amendment, but attempts by Congress to rely on § 5 to overturn Supreme Court decisions interpreting the Constitution have fared no better.

In City of Boerne v. Flores, 521 U.S. 507 (1997), the Supreme Court struck down a statute passed by Congress in reaction to the Court’s earlier decision in Employment Division, Dep’t of Human Resources of the State of Oregon v. Smith, 494 U.S. 872 (1990).  In Smith, the Court held that a “free exercise of religion” claim brought under the First Amendment may not be brought against a neutral law of general applicability, even if that law has the incidental effect of burdening someone in the exercise of his religion.  In response, Congress, purporting to act under § 5 of the Fourteenth Amendment, enacted the Religious Freedom Restoration Act.  Under the Act, any state statute, local ordinance or other regulation that “substantially burdens” a person in the free exercise of his religion is subject to the “strict scrutiny” standard of review.  A statute, ordinance or regulation subject to this standard is presumed to be invalid, and may be upheld only if the State (or municipality, in the case of an ordinance or local regulation) demonstrates that it is the least restrictive means of advancing a compelling governmental purpose.  Because this test is seldom met, the “strict scrutiny” standard has been described as “strict in theory and fatal in fact.”

In City of Boerne, the Court held that the Religious Freedom Restoration Act exceeded Congress’ authority to “enforce” by “appropriate legislation” the provisions of the Fourteenth Amendment.  521 U.S. at  529-36.  Although Congress has broad enforcement power under § 5, that power is not “unlimited.”   Id. at 518 (citation and internal quotation marks omitted).  “Congress’ power under § 5 . . . extends only to “enforc[ing]” the provisions of the Fourteenth Amendment,” a power which is “remedial” in nature.  Id. at 519 (citation and internal quotation marks omitted).  As the Court explained:

The design of the [Fourteenth] Amendment and the text of § 5 are inconsistent with the suggestion that Congress has the power to decree the substance of the Fourteenth Amendment’s restrictions on the States.  Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause.  Congress does not enforce a constitutional right by changing what the right is.  It has been given the power “to enforce,” not the power to determine what constitutes a constitutional violation.  Were it not so, what Congress would be enforcing would no longer be, in any meaningful sense, the “provisions of [the Fourteenth Amendment].”

Id.  The Court added:

If Congress could define its own powers by altering the Fourteenth Amendment’s meaning, no longer would the Constitution be “superior paramount law, unchangeable by ordinary means.”  It would be “on a level with ordinary legislative acts, and, like other acts, . . . alterable when the legislature shall please to alter it.” [Citation].  Under this approach, it is difficult to conceive of a principle that would limit congressional power. [Citation].  Shifting legislative majorities could change the Constitution and effectively circumvent the difficult and detailed amendment process contained in Article V.

Id. at 529.

The Supreme Court’s decision in City of Boerne v. Flores leaves no doubt that any effort by Congress, relying upon its “enforcement” authority under § 5 of the Fourteenth Amendment, to define the unborn child as a “person,” as that term is used in § 1 of same Amendment, would fly in the face of the Court’s decision in Roe v. Wade that the unborn child is not a constitutional “person.”  Congress’ power under § 5 is “corrective or preventative, not definitional . . . .”  Boerne, 521 U.S. at 525.  Yet, in attempting to define “person” as including the unborn child, Congress would be doing precisely what the Court has said it cannot do, i.e., “decree[ing] the substance of the Fourteenth Amendment’s restrictions on the States.”  Id. at 519.  Section 5 of the Fourteenth Amendment does not “endow[] Congress with the power to establish the meaning of constitutional provisions.”  Id. at 527.  In the absence of a majority on the Court that would be willing to overrule Roe’s “personhood” holding (and no Justice on the Court, then or since, has expressed the opinion that the unborn child is or should be regarded as a constitutional “person”), that holding cannot be overturned except by a federal constitutional amendment.  “The power to interpret the Constitution in a case or controversy remains in the Judiciary.”  Id. at 524.  A Supreme Court ruling interpreting the Constitution may not be overturned by a statute.

Removing the Supreme Court’s Appellate Jurisdiction over Abortion Cases

From time to time, persons have proposed Congressional legislation removing the Supreme Court’s appellate jurisdiction over cases challenging abortion regulations.  Such legislation, it is believed by some, prevent the Supreme Court from enforcing and/or expanding the abortion liberty recognized in Roe v. Wade, 410 U.S. 113 (1973), as modified in Planned Parenthood v. Casey, 505 U.S. 833 (1992).  That proposal also came up in the recent Republican presidential candidates’ forum sponsored by the “Tea Party.”   Legislation to remove the Court’s appellate jurisdiction over abortion cases would be based on art. III, § 2, of the Constitution, which provides, in relevant part, that Supreme Court “shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”  Although legal scholars have disagreed about Congress’ constitutional authority to remove the Supreme Court’s appellate jurisdiction over a given category of cases (e.g., abortion), this analysis does not attempt to enter into that debate.  Rather, the analysis suggests that, even if Congress does have such authority, it should not exercise it.

First, removing the Supreme Court’s appellate jurisdiction over abortion cases would not affect the precedential force of the Court’s abortion decisions.  Under the Supremacy Clause of the United States Constitution, both lower federal courts and state courts would continue to be bound by Roe, as modified by Casey.  Article VI of the United States Constitution provides, in part, that “This Constitution . . . shall be the supreme Law of the Land; and the judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”  And under art. VI, “all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation to support this Constitution . . . .”

Second, ironically, removal of the Supreme Court’s appellate jurisdiction over abortion cases would actually prevent a differently constituted Court from overruling Roe and Casey, and returning the issue of abortion to the States.  That would not appear to be in the best interests of the pro-life movement or unborn children.

Third, removal of the Supreme Court’s appellate jurisdiction over abortion cases would effectively leave lower federal courts and state supreme courts as the final arbiters of what is and what is not allowed with respect to the regulation of abortion.  Under current law, a decision by either a federal court of appeals or a state reviewing court giving an overbroad reading to the abortion liberty may be reviewed and rectified by the Supreme Court.  If the Court’s appellate jurisdiction were removed, however, there will be no mechanism for correction of such decisions.  Moreover, there could be a profusion of conflicting decisions among federal courts, among state courts and between federal courts and state courts, as to what abortion regulations are permissible, with no possibility of Supreme Court review.

Conclusion

The Supreme Court’s abortion decisions can be overturned only by an overruling decision of the Court itself or by a federal constitutional amendment. Congress has no power under § 5 of the Fourteenth Amendment to define the unborn child as a “person” for purposes of § 1 of the Amendment, when the Court has held (in Roe) directly the opposite. Removal of the Supreme Court’s appellate jurisdiction over abortion cases
would not affect the binding force of those decisions and would actually prevent a differently constituted Court from overruling Roe and Casey. The proposals made to the Republican presidential candidates at their “Tea Party” forum do not offer a realistic means of overturning Roe v. Wade and do not deserve the support of the pro-life community.

Roe can be overturned only by a decision of the Court itself overruling Roe or by a federal constitutional amendment–neither a federal statute enacted under § 5 of the Fourteenth Amendment defining the word “person” as used in § 1 of the Amendment, nor a statute removing the Supreme Court’s appellate jurisdiction over abortion cases would have that effect.

LifeNews.com Note: Paul Linton is special counsel to the Thomas More Society, a pro-life legal group.