Institut Cato, Supreme Court and abortion: erroneous non-participation


The Supreme Court building in Washington DC, August 5, 2021 (Brent Buterbaugh / National Review)

If you are like me, you will have enjoyed reading the legal commentary which was published prior to the Supreme Court arguments in Dobbs v. Jackson Women’s Health Organization December 1. The case at issue is the Mississippi Gestational Age Act of 2018, which prohibits abortions after 15 weeks of pregnancy, except for medical emergencies and serious fetal abnormalities. The scholarship on the matter – both in formal amicus memoirs and in longer essays – has been richly educational. That so many constitutional law professors, advocacy groups and nonprofits have decided to submit their thoughts for consideration is not surprising, given that this may be the case at hand. larger than the court has decided to deal with in decades. Mississippi’s law – though modest and widely popular – is clearly inconsistent with previous court rulings, and therefore threatens the abortion regime that has been built over the past half century.

So I was surprised when I learned that the Cato Institute – the leading libertarian think tank in Washington, DC, which has a center dedicated to the study of constitutional law – decided not to file with the Court in this case. The surprise quickly turned to confusion when I read Ilya Shapiro, the director of the center, on his justification not to do it.

Cato did not and will not file in Dobbs, as we have in no abortion case, for three reasons: (1) Libertarians in good standing run the gamut from the most fervent pro-choice to the most fervent pro-life, (2) we have nothing unique to add about what “excessive demand” is or how it may apply to particular abortion regulations, and (3) while Cato’s lawyers may each have their own point of view as to when the rights apply – see point 1 – this is fundamentally a philosophical, theological and therefore ultimately a political question, and not legal.

Consider each reason in turn.

First of all, I’ll take Shapiro at his word that libertarians, both in Cato and elsewhere, have a range of views on abortion. Yet maintaining a wide range of opinions on abortion doesn’t stop Cato – or one of his ilk – from opposing it. Roe deer and Casey, which they should do on the sole constitutional principle. Indeed, any pro-choice libertarian “in good standing” should defend exactly this position. More on that below.

Then there is the admission that they have nothing unique to add about what constitutes an “undue burden” – the standard set in Planned Parenthood v. Casey to determine whether a state restriction on the pre-viability of abortion is legitimate. Constitutionally, this is fair enough. The excessive burden standard has been sufficiently, if not exhaustively, considered. Take, for example, a brilliant new essay by Mary Ann Glendon and O. Carter Snead in National affairs. Pleading for the overthrow Roe deer and Casey, they note that the standard has been an extremely vague concept since its inception. The new standard, they write,

doubled Roe’s free derivation of a constitutional right based on judges’ own normative balance of competing interests: a woman’s interest in being free to make intimate, personal, and self-defined reproductive choices on the one hand, in relation to the interests of the State in defending the unborn child, preserving the integrity of the medical profession and promoting respect for life more generally, on the other hand.

He failed, once again, to ground the Court’s case law on abortion in the Constitution. In this case, invented rules tend to generate more invented rules.

Also consider this brief description by Chief Justice John Roberts of the kind of balancing act that Casey demanded: “There is no plausible sense in which anyone, let alone this Court, could objectively give weight to such intangible values ​​and no meaningful way of comparing them if there were any.”

In short, yes: Casey is a well-trodden ground. Present this as a justification for not the filing in this case, however, is not convincing. One could write about a number of things unrelated to the overload standard – and, indeed, the majority of those tabled in favor of the state of Mississippi have done so. But beyond that, the case itself hardly depends on whether state law is an undue burden before viability. His ban – with minimal exceptions – at 15 weeks obviously amounts to one. Mississippi doesn’t even claim otherwise; he knows his law violates the standard set by the Supreme Court. Instead, the state has put forward a watch decisis argument against Roe deer and Casey.

Finally, the assertion that “attachment to rights” – that is, when the fetus retains the rights inherent in personality – is a philosophical, theological and political question. Here, too, Shapiro is generally right. (Some notable conservatives such as Robert P. George and John M. Finnis disagree, arguing that unborn children are constitutional persons entitled to equal protection under the 14th is fundamentally a legal question.)

But to argue that it is expressly political – as Cato puts it – is to have sufficient cause to support the Mississippi case. That the question of when the rights attach be a political question, without any inferential language in the Constitution, supports the decision of the Court to remove the precedent which treats it as one, thus returning the deliberation of the question to the States. , to which it belongs. Shapiro’s comment then is indeed a justification – but not in the direction in which he imagines it.

Finally, some may also suggest that for to spill such precedents would be dangerously political. But the opposite is true: Roe deer itself was the original political sin, and the Court’s withdrawal from this sphere would be entirely apolitical. As has been discussed in these pages – and elsewhere – the Court’s case law on abortion has no legitimate basis in the Constitution. Roe deer, in the words of pro-choice jurist John Hart Ely, “was not constitutional law and makes almost no sense of the obligation to try to be.” It is therefore hardly political for the Court to correct a serious error which has caused significant negative legal and real consequences. To do so, in fact, would undoubtedly strengthen its legitimacy and restore it to its rightful place in our constitutional order.

The opportunity before the judges is great. This is also the case with the one that preceded the Cato Institute. It’s unfortunate that Cato chose to stay away – and doubly so, that’s his reasoning for doing so. The Court must fight the temptation to do the same.


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