The Supreme Court's Abortion Decisions: Some Observations on the Exercise ofJudicial Review in the United States
By Professor JOEL B. GROSSMAN, University of Wisconsin
Every so often the Supreme Court of the United States will make a controversial decision of such magnitude that, entirely apart from the substantive issues of the case, the perennial debate over the legitimacy and efficacy of judicial review will be resumed. The Court will be denounced by its critics for having engaged in a display of "raw judicial power", for usurping the legislative function by "judicial legislation", for making "policy" instead of interpreting the law, and for generally exceeding the proper limits of judicial power. Proponents will counter with observations about judicial statesmanship, the need to keep the law responsive to changing times and conditions, and the inevitability of the Supreme Court's policymaking function in a pluralist democracy. Debate will again focus on the unique political role of what is ostensibly a legal but is also a political institution and conclude by echoing Anthony Lewis' observation that the Supreme Court is "different from all other courts, past and present. It decides fundamental social and political questions that would never be put to judges in other countries". At the same time it is very much a court, not only in its physical setting and procedures, but in its relatively limited capacity to consider and influence the resolution of important political issues. While the Court's hybrid role is often confusing, it may also be, as Harry Kalven has suggested, an important source of its power.1
Judicial review is the power of a court to declare invalid a legislative enactment or an executive act because it conflicts with some provision of a basic law or constitution. In the United States this power is nowhere expressly mentioned in the Federal Constitution. It is very much an "implied" power announced and exercised by past courts and now legitimized by tradition and the passage of time.2 But the
uncertain origins of this power, and the fact that on the surface it appears to conflict with majoritarian concepts of democracy, makes its exercise controversial and imposes on the justices of the Supreme Court the obligation at least to be discrete and outwardly deferential.
Deference and discretion are not legal requirements. They are political necessities. Mindful of this, the Supreme Court has been restrained in its willingness to invalidate acts of Congress or the President. Any exercise of judicial review is likely to provoke claims that the venerable principle of separation of powers has been breached. And there is always the prospect that an order to the President will not be obeyed, exposing the Court's futility in the face of determined opposition. On the other hand the Court has been much less restrained in its treatment of state statutes.3 The actual incidence of statutes invalidated by judicial review is but a partial measure of the importance of this power which, like power generally, diminishes in potential effectiveness if misused or over-used. The threat of judicial review is a deterrent and constant reminder to public officials to consider and respect the legal limits of their authority. When the limits themselves are uncertain, and when the meaning of basic constitutional principles is constantly changing, officials face a difficult task in conforming their actions to the law. Judicial review in the United States is important not only as a negative check on official action, but also as a positive means by which new public norms and values can be articulated and the processes of change both advanced and regulated.
It is not true, as some Americans and others believe, that judicial review is uniquely American, either in its origins or in practice. The idea of judges reviewing laws can be traced to Plato's "nocturnal council of magistrates" and to the ideas of other, later, philosophers. It has been estimated that about 40 % of the existing nation states incorporate some form of judicial review, either as exercised by courts of general jurisdiction or by special constitutional courts which function apart from, or on top of, regular judicial systems.4 Not included in this estimate are pre-statutory review procedures, which may be either advisory or authoritative. Within these groups there is great variation as to the types of issues to be decided, the scope of judicial review jurisdiction, and the accessibility of courts exercising such
power to citizens with appropriate grievances.5 All of these factors, and others not mentioned, are important in determining the exact role which a reviewing court can play in a political system. The American experience is therefore but one example of a more widespread phenomenon.
On January 22, 1973 the Supreme Court decided the cases of Roe v. Wade and Doe v. Bolton, which had challenged the abortion laws of Texas and Georgia.6 The decisions were handed down after a long period during which an unusually bitter debate among the justices had ensued. The cases were first argued in December, 1971 and then reargued in October, 1972. Debate on the Court centered not only on the constitutionality of abortion laws, but also on the important procedural question of the right of the Chief Justice to assign an opinion in a case in which he did not initially vote with the majority.7 The decision culminated a series of attempts to raise the abortion issue in the Supreme Court after many efforts at legislative reform had failed and numerous lower federal and state courts had made conflicting decisions.
"Roe" and "Doe" were pseudonyms for the main female plaintiffs in these cases. Each woman bore her child after requests for legal abortion had been refused and the litigation begun, but long before the Supreme Court eventually decided "in their favor". Normally a case is considered "moot" when the controversy which brought it about no longer exists or where a change in the law has eliminated the legal basis of a complaint. A Supreme Court decision could not have had any effect on the complaints of these plaintiffs, who were no longer pregnant. To decide these questions the Supreme Court created an exception to its usual rule of dismissing moot cases. To have
enforced the rule would have rendered abortion statutes invulnerable to Supreme Court challenge.
The Texas law was typical of statutes existing in about three-fourths of the states. It dated back to the mid-19th century and prohibited abortion except to save the life of the mother. Those convicted of violating the statute faced a prison sentence of five years to life. By contrast, the Georgia statute was of modern vintage, enacted in 1968 to replace an older law similar to that of Texas. The Georgia Reform law was based on the Model Penal Code of the American Law Institute.8 Abortions undertaken to preserve not only the life, but also the health, of the mother, where there existed a likelihood that the fetus would be born with "grave, permanent, and irremediable" mental or physical defect, and where the pregnancy resulted from forcible or statutory rape, were permitted.9 However a number of additional conditions were imposed. The woman requesting abortion had to be a resident of Georgia, two physicians and the performing physician had to examine the patient and state in writing the medical judgment on which the proposed abortion was based, the abortion had to be performed in a licensed and accredited hospital, there had to be advance approval by a hospital abortion committee, and several other bureaucratic hurdles had to be overcome. Finally, every hospital had the legal right to refuse any abortion patient and no member of a hospital staff could be required to participate in an abortion procedure contrary to his religious or moral beliefs. It was a more liberal law in one sense, but also a veritable obstacle course for the abortion patient to overcome. Certainly it was not designed to facilitate a great number of legal abortions.
By a 7—2 vote the Supreme Court found each of these statutes unconstitutional, a decision which inferentially but nonetheless authoritatively invalidated all restrictive abortion statutes in the United States. Even the statutes in those states which had recently been revised to allow almost unrestricted abortions failed to meet some of the new rules handed down by the Supreme Court. Not content merely with finding the challenged statutes void, as would usually be the case, the Court laid down a series of broad guidelines that resembled a statute more than a judicial decision.
Based on his extensive exploration of the declining hazards of abortion as a medical procedure, the development of abortion laws, and a balancing of the state's interests in the health and safety of its in-
habitants with the mother's constitutional right of privacy, Justice Blackmun proposed a three-tiered rule. During the first trimester of pregnancy there is a lower maternal mortality rate for abortion than for normal childbirth. Hence during this period the state has no compelling basis for interfering with a medical decision made by and between patient and doctor and no regulation is permissible. During the second trimester the state could impose reasonable regulations to preserve and protect the health of the mother. For example it could set qualifications and require licensing for the person performing the abortion, and it could require that the abortion be performed in a licensed clinic or hospital. On the other hand, during the third trimester, when the fetus is viable outside the womb, the state has acompelling interest in protecting the potential life of the fetus and could regulate or even proscribe abortion except to preserve the life or health of the mother. In addition virtually all of the procedural requirements of the Georgia statute were invalidated. The Court did hold that there is no constitutional right to abortion on demand.
Normally the exercise of judicial review is limited by a number of self-imposed limitations which have developed in part as a rationalization for the Court's continued exercise of this power, and in part as a recognition of the political limits under which the Supreme Court must operate. These are often referred to as maxims of "judicial self-restraint". While they have some constitutional basis, their content is flexible enough to permit the Court to decide those cases it wishes to hear and to reject cases deemed unsuitable, as considerations of prudence and discretion dictate. These maxims have been widely subscribed to by judges and lawyers and have exercised considerable impact on the Court's view of its proper role.
There are two sets of self-restraint maxims involved in the abortion decisions. First there are a number of rules designed to limit access to the Supreme Court which flow from the constitutional requirement of "case or controversy". Translated, this means that to qualify for Supreme Court review a case must be genuinely adversarial, a real conflict between two or more parties. Plaintiffs must be able to demonstrate this in order to have standing to sue. One may not assert the claims of others, protest against some potential, or theoretical harm, ask the Court for an advisory opinion, or maintain an action which has become moot. We have already suggested that the Court was willing to relax its requirement of mootness in recognition of the normal and immutable nine months period of gestation, especially when compared to the extended length of the appellate review process. Waxing philosophical, Justice Blackmun observed that
"Pregnancy often comes more than once to the same woman, and in the general population, if man is to survive it will always be with us. Pregnancy provides a classic justification for a conclusion of non-mootness". The validity of statutes cannot be attacked abstractly. They can only be challenged by persons who either have been or are in immediate danger of being harmed by them. The Court found that the plaintiffs had a legitimate basis to fear prosecution and thus had standing to seek a declaratory judgment invalidating the statute.10
Deference to the legislative judgment is usually expressed by a burden of proof formula. It is assumed that a statute duly passed by a legislative body is constitutionally valid unless and until those challenging the statute can demonstrate its unreasonableness or its obvious repugnance to a constitutional provision.11 Over the years there have been many exceptions to the burden of proof formula, some openly recognized and others not. Beginning in the 1930s the Supreme Court began to identify certain types of statutes which were less entitled to the presumption of constitutionality.12
Among others, those statutes which appeared to restrain the exercise of a "fundamental right" such as the First Amendment's protections of free speech and religion were constitutionally suspect. Instead of merely showing that a statute bore a reasonable relationship to a constitutionally permissible end, the government in such instances (these were mostly cases involving state statutes) was required to
demonstrate that it had a "compelling interest" in regulating a subject at all, or by a specific set of rules. By shifting the burden of proof to a state the Supreme Court made it very difficult, often impossible, for the statute to be upheld.13 A strict standard of review such as the "compelling state interest" doctrine was, of course, also a license for a much looser and freer exercise of judicial review.
In the abortion cases it was important first to determine which constitutional provision was to be invoked. An earlier challenge to abortion statutes on the grounds that they were "void for vagueness" under the due process clause of the 5th and 14th Amendments had been rejected by the Supreme Court.14 What was argued in these cases, and what the Court accepted, was that the statutes should be judged against the right of privacy, that the right of privacy was a "fundamental" right implicit in a concept of ordered liberty and required the imposition of the "compelling state interest" doctrine, and that measured by this strict standard, the states had failed to justify their abortion statutes. The Supreme Court also accepted the argument of the plaintiffs that a fetus is not a "person" within the meaning of the 14th Amendment and not subject to its protection.
The right of privacy, not explicitly mentioned in the Constitution, has a long history in the common law. As a constitutional standard i tis derived from a number of other and more explicit guarantees found in the Bill of Rights and the 14th Amendment. As an operational concept of constitutional strategy it is of very recent vintage and it has exercised an important influence in the liberal trend of recent Supreme Court decisions.15 Its future potential as a constitutional weapon of social change may be even greater, partly because its appeal is not exclusively to the political left or right but crosses ideological barriers. Justice Blackmun did not bother to determine whether the right of privacy in this case came from the 9th or 14th Amendments. What he found was that, either way, it was a concept "broad enough to encompass a woman's decision whether or not to terminate her pregnancy". But the Court rejected the plaintiff's
further claim that the right of privacy was absolute, holding instead that its protection must be balanced against other important state interests.
Because privacy is a fundamental right the state must show a compelling interest in enacting limitations on it. A state cannot use abortion statutes as a means of regulating sexual conduct. It cannot regulate abortions during the first trimester nor prevent them during the second. But as the fetus develops and its potentiality for life becomes viable, the state's interest in protecting this potential life grows and may overbalance the mother's right to privacy except where the mother's own life is at stake. It is a complex formula and one which inextricably will involve the Supreme Court in the resolution of the many questions which it did not answer in this case but which remain controversial political and social issues: Is a state responsible for affirmative action to provide abortions for all women who want them but cannot afford them? Can a physician or a hospital be forced to comply with demands for an abortion where, as in a sparsely populated area, a woman has no other options? Can the father cum husband object to his wife's decision to have an abortion? Can a state require his written consent? What about the unmarried father? And can parental consent be required for abortions performed on minors?
For the dissenting Justices, White and Rehnquist, there was simply no justification for a decision such as this. It was a clear case of "judicial legislation" and a misuse of the power of judicial review. The majority of justices, they said, had simply imposed its own values on the states, elevating the convenience of the mother above the life of the fetus. Since this was an issue over which reasonable men might differ, and since the Constitution did not specifically speak to the question, it was improper for the Supreme Court to impose its own views. The issue was one which should have been left in the realm of ordinary political processes. Justice Rehnquist went somewhat further in a separate dissenting opinion. He noted that most of the abortion statutes had been drafted prior to the enactment of the 14th Amendment in 1868. Since the drafters of that amendment almost certainly did not intend to invalidate such laws, the 14th Amendment could not be reinterpreted to apply to subjects not originally contemplated by the authors of the amendment. This is an argument he had made before in his short tenure on the bench and appears part of a campaign on his part to turn back the clock of constitutional
jurisprudence.l6 To accept it would imply repudiation of virtually all of the liberal decisions of the Warren Court and substantially restrict the Court's capacity to govern. As before it received no support from his brethren.
Neither White nor Rehnquist argued that judicial review is illegitimate. But both questioned the appropriateness of the standards which had guided the majority in this case. The vulnerability of the Court to this sort of criticism, which undoubtedly will be echoed by those off the bench as well, was underscored by Justice Blackmun's candid admission that the Justices had to rely on their personal judgments to guide them: "One's philosophy, one's experiences, one's exposure to the raw edges of human existence, one's religious training, one's attitudes toward life and family... are all likely to influence and to color one's thinking and conclusions about abortion". Indeed there are few in the United States today who do question the power of judicial review itself.
Despite its uncertain origins, the weight of tradition and its exercise for 170 years has given to judicial review an aura of legitimacy and a strong protective coating. The Supreme Court as an institution and the power of judicial review have survived innumerable political and constitutional attacks. Yet its exercise has almost always been controversial and not without cost. A few Supreme Court decisions have been reversed by constitutional amendment.17 But this is a slow and difficult process, better measured by the thousands of proposed constitutional amendments seeking to reverse unpopular decisions which did not pass the Congress. On the other hand there have been hundreds of occasions on which Congress has reversed the Supreme Court by statute, and other instances in which its displeasure has been manifested in reducing the Court's jurisdiction, changing the size of the Court, and venting its wrath in questioning of prospective Supreme Court appointees.18 The Court's decision is rarely the last word on an issue of importance. The opportunities for "authority
leakage" as a decision winds its way through the vast judicial bureaucracy and into the political system are very great. This is a considerable check on judicial power—as is the Court's lack of authority to initiate litigation or oversee the implementation of its decisions. Given the Court's lack of power over "the purse or the sword" its continued viability and influence is a measure of widespread acceptance of its role.
The lesson that emerges from these patterns of constitutional development is that the Supreme Court is never for long out of touch with predominant political forces. Many attempts to counter unpopular decisions have failed, arguably because the Court itself has retreated from advanced positions not easily defended but also because of the difficulty of mobilizing political majorities—to say nothing of the extraordinary majorities required for constitutional amendments.19 One can also note that the Court is usually in the mainstream of American politics because of the way in which its members are appointed—by the President and by those generally in agreement with his views.20 Thus, judicial review, whatever it may seem in the abstract, is more properly seen as one species of political bargaining, subject to many of the checks and balances in a pluralist democratic society, and providing its own check on other policymaking institutions.
These cases were decided at a time of increasing public support for the principle that abortion is a medical matter to be decided privately between doctor and patient. About one-fourth of the states had revised older, more restrictive laws by liberalizing and expanding the number of reasons justifying abortion. One state, Oregon, went even further and stated that determination of possible risk to the mental or physical health of the mother could include considerations of her "total environment, actual or reasonably foreseeable". And four states repealed all criminal statutes prohibiting abortion by a
licensed physician before the fetus has quickened. On the other hand the majority of states seemed relatively unresponsive to the tremendous political and social pressures for repeal or modernization generated by women's groups and other pro-abortion forces. In those states a legislative stalemate existed.
Public opinion studies reflected this growing support. A national survey conducted for the President's Commission on Population Growth and the American Future found that 50 % of the respondents believed that abortion should be treated as an ordinary medical matter, 41 % said it should be permitted only under certain circumstances, 6 % would prohibit it altogether, and 3 % had no opinion. A later poll, conducted in January 1972, showed that a majority of Catholics believed that abortion should be a private medical decision, and the general support for this position rose to 57 %. A number of polls taken in separate states showed approximately the same results.21 In March, 1972 the President's Commission endorsed the reform law of New York State but President Nixon announced his opposition to "unrestricted abortion policies". One month later the President publicly supported the effort to repeal the New York law (which had passed in 1970) in a much publicized letter to Cardinal Cooke of New York. The repeal effort in the legislature was successful, but wast hen thwarted by a veto by Governor Rockefeller.
The Supreme Court's opinion did not refer to these changes in popular attitudes, but of course the justices were not unaware of the strong public involvement in the issue nor of the escalating effect which their decision would have.22 By choosing to formulate a national pro-abortion policy the Court inescapably invited counterefforts to impose a national anti-abortion policy.
Though it is too early to predict the ultimate outcome, there have already been efforts, in the state legislatures and in the Congress, to initiate a constitutional amendment to overturn the Supreme Court's decision. Thus there is at least a remote possibility that the Court's efforts to liberalize abortion laws by adopting the model of the most progressive states will backfire and all federal liberalizing influences will be cancelled. This sort of risk is frequently involved when the
Court enters a controversial area lacking any national consensus. On the other hand the great number of cases challenging abortion statutes filed in both federal and state courts, and conflicting decisions rendered by these courts, made some sort of attempt at uniform policy control by the Supreme Court almost inevitable and certainly desirable.
It is said that the genius of federalism is to allow individual states to become the laboratory for social experiments without involving the whole of the country. But such a view often risks the legal chaos which the Supreme Court obviously found not to its liking in these cases. There is no way to compel the Supreme Court to decide a case it wishes to avoid. But the Court cannot hope to function effectively if it ignores strong and growing pressures for change. By its decision the Court has given strong recognition to changes in public attitudes toward abortion. And at the same time it has lent its prestige and authority to further enhance the reform movement. Those who favor abortion now have the law on their side. Perhaps more important in the long run, the Court's decision is a signal that the new Nixon Court is not removing itself from the dynamic center of the political system, and that those who seek far-reaching change can still expect sympathetic if not always favorable consideration.23
In recent years social scientists have focused attention on the variable "impact" of Supreme Court decisions.24 They have shown the gap which often exists between the Court's declaration and its implementation. No such problem will exist initially in these cases, since compliance with the decision is effected merely by not prosecuting physicians under invalid state laws. And there is no evidence that public prosecutors intend to keep enforcing such laws. No other positive actions or mobilization of resources is required. But there is more to a decision than its narrow holding of law. Though the Supreme Court expressly disclaimed any such intention, its decision has already been equated by some with a "right to abortion" policy which implies the need for affirmative action by the states to provide or insure the availability of the facilities needed to provide abortion on demand.
Curiously enough this interpretation of the Court's decision comes not only from its proponents—for many of whom it did not go far enough—but also from its opponents who exaggerate its scope to dramatize their case for constitutional reversal. It is in this broad sense that the "impact" of the abortion decisions remains of great interest—the extent to which it provides both a protective cover and a judicial stimulus to related efforts to reform the criminal law generally and specifically to decriminalize those sex-related and other "crimes without victims" which comprise such a large part of the criminal business of the courts in the United States today.25
Seen in this way, the Supreme Court's power of judicial review is not at all the stagnant, backward-looking and undemocratic check on the popular will that some have claimed. Of course it can be, and has in the past been, utilized to favor the interests of the rich and the powerful.26 But in its modern form and usage it is an immensely vital and vitalizing force in the political system. The wielders of this immense power may not be elected, but they are responsive, especially to pleas of those minority groups denied their fair share of influence in the political process. Not infrequently the Court has acted where the political processes were hopelessly deadlocked, forcing the political system to recognize inequities otherwise ignored. It is better able to risk unpopular decisions than legislators who must face their constituents and are unlikely to opt for career threatening choices. Sometimes the Court has been too far ahead of its time. Its commitment to fairness and equality has been imperfect and its "idea of progress"27 is sometimes impractical and a risk to its continued prestige. But the function which it plays in the political system, especially one as large and complex as in the United States, seems important if not indispensable.
Originally courts were arms of the executive branch. Though mos tpeople today see the main role of courts as enforcing the law, the creative use of judicial review has enabled courts to serve as an alternate and competing pluralist center of political power. Those who "lose" in the legislative battle may yet win the day in the courts. But those who "win" in the courts may also lose the day in the legislatures. The authority of each is therefore compromised a bit and the finality of decisions postponed, but the benefit to the system as a
whole is great. There is certainly no evidence to support the contention, made by the late Justice Frankfurter and others, that excessive use of judicial review warps the political process and diminishes popular confidence in elected bodies.28
This is not to say or even to suggest that nations which do not have the practice of judicial review are somehow deficient in their political structure, or not adequately committed to the protection of individual rights which, in the United States, has so much become the primary task of the courts. People often expect too much of courts and constitutions. If the basic norms and values of a society are committed to individual rights, courts and constitutions may be able to both protect and even expand these rights. But in the absence of a broad consensus, or a supportive political culture, it is unlikely that the presence or absence of courts—or of judicial review—would make much difference.29