Hadley Arkes is a brilliant philosopher who has contributed enormously to our understanding of natural law and natural rights. With Abraham Lincoln, he has argued that the Constitution should be read in conjunction with the Declaration of Independence’s assertion of unalienable rights bestowed by our Creator on all human beings – and concludes that the Constitution not only allows legal protection for the unborn but requires it.

His recent TCT column “Waiting for Dobbs” speculates that the Court, faced with a decision about Mississippi’s law forbidding most abortions after fifteen weeks, might uphold that law without reversing Roe v. Wade’s holding that the choice of abortion is a fundamental right. As precedent, he cites Justice Byron White’s dissent in Thornburgh v. American College of Obstetricians and Gynecologists (1986). By 1986, he suggests, White no longer held that Roe should be overturned, but that the abortion “right,” while fundamental, should be interpreted as allowing for some restraint.

My only criticism is that I think this somewhat misreads White’s opinion in that case and the principled position he held against Roe throughout his judicial career. I hold that Justice White, whose political background was that of a liberal Democrat, brought a moral passion to this issue unmatched until Justices Scalia and Thomas joined the Court.

First, some background. When Roe and Doe v. Bolton were decided by a 7-to-2 vote, Justice Rehnquist filed a polite and lawyerly dissent, claiming that the Court had overreached by deciding questions that were not properly before it. Justice White joined that dissent but also filed his own more devastating critique:

I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. . . .As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court. . . .In a sensitive area such as this, involving as it does issues over which reasonable men may easily and heatedly differ, I cannot accept the Court’s exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it.

Yes, he said a pregnant woman is already a mother; that this is about protecting “human life”; and that the Constitution provides no warrant for a right to “exterminate” that life.

Did he say differently in the Thornburgh case in 1986? Near the very beginning of his dissenting opinion, he declared:  “I was in dissent in Roe v. Wade, and am in dissent today. In Part I below, I state why I continue to believe that this venture has been fundamentally misguided since its inception. In Part II, I submit that, even accepting Roe v. Wade, the concerns underlying that decision by no means command or justify the results reached today.”

Then he offered a cogent argument about why Roe fails every test for treating something as a fundamental right (or as he said, a fundamental liberty). The demand to allow abortion is not implied by anything in the text of the Constitution or past Supreme Court precedents; it is not essential to ordered liberty, and it has no foundation in the history and traditions of our nation. Addressing the argument that Roe should be upheld under the principle of stare decisis, he said this preference for following precedent does not justify following a decision that is egregiously wrong. If it did, the Court’s Plessy v. Ferguson decision allowing segregation could not have been reversed in Brown v. Board of Education.

At one point White conceded that a decision for abortion is “a species of liberty.” But every law restricts someone’s liberty to act as he or she wishes. Where Roe went wrong was in claiming a constitutional basis for seeing this liberty as “fundamental,” exempting abortion from the very wide range of cases in which the State can invoke a legitimate reason (for example, the protection of human life) for restricting liberty.

While others had tried to find such a constitutional basis in the 14th Amendment’s guarantee of “due process,” he reaffirmed his earlier opinions against misusing that clause to manufacture new substantive rights.

Then, Justice White addressed his colleagues who nevertheless insisted that Roe was rightly decided. In effect he said: Even if, for the sake of argument, you were right and I were wrong about that fundamental point, it would still be wrong to invalidate the modest Pennsylvania laws under consideration in Thornburgh. He did not depart from his own view that “this venture has been fundamentally misguided since its inception,” but chided the majority for its extremism in going beyond even Roe itself.

And Thornburgh did go beyond Roe. It invalidated a law requiring the provision of information about possible complications and alternatives 24 hours before the abortion; a law requiring that a post-viability abortion be done by a method allowing the child to survive after separation from the mother, unless that compromises the life or health of the mother; and a law requiring, in cases where the child may be viable, that a second physician be present to attend to the health needs of the newborn child.

None of these laws banned abortion, and none had been invalidated by Roe. In Planned Parenthood v. Casey the Court would later describe Roe as forbidding states to ban abortion before viability.

The majority opinion in Thornburgh was so extreme that Chief Justice Warren Burger, who had joined the majority in Roe, dissented.

Burger felt betrayed. He had supported Roe because of the Court’s assurances that the woman’s liberty would not be absolute, but would be balanced against other valid interests such as maternal health and the life of the unborn child. He complained that “we have apparently already passed the point at which abortion is available merely on demand. If the statute at issue here is to be invalidated, the ‘demand’ will not even have to be the result of an informed choice.”

The Roe Court’s declaration that the state’s interest in fetal life becomes “compelling” at viability had been reduced to “mere shallow rhetoric.” Burger concluded: “The soundness of our holdings must be tested by the decisions that purport to follow them. If Danforth and today’s holding really mean what they seem to say, I agree we should reexamine Roe.”

Unfortunately, Chief Justice Burger retired from the Court that year, so we cannot predict whether he would have turned firmly against Roe or kept trying to distinguish it from later expansions. Even he never claimed that Roe was consistent with an actual ban on pre-viability abortions. But he was closer to providing precedent for Professor Arkes’ argument than Justice White. For White, the Court’s starting point was arbitrary and insupportable in the first place.

The year before he in turn retired from the Court, Justice White had one more opportunity to comment on abortion.  In Planned Parenthood v. Casey (1992), the Court’s controlling opinion upheld some Pennsylvania laws regulating abortion but reaffirmed what it called the central holding of Roe. Justice White would have none of it. He joined the dissenting opinion of Chief Justice Rehnquist, and the dissent by Justice Scalia (also joined by Justices Rehnquist and Thomas) forthrightly calling for reversal of Roe. In my reading, Justice Scalia’s legal arguments elaborated on what Justice White had already written in 1986. “We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining,” Scalia wrote.

The Scalia dissent, incidentally, remarked on Professor Arkes’ question whether the Court should worry about marches and protests once it hands down a decision. He held that worrying about such things is not the Justices’ business, and that his colleagues had invited such politicking by constantly making decisions on abortion that smacked more of their own political opinions than of legal principle. The Court’s mandate is to do what is right. I think Justice White would agree.

My defense of Justice White is based on the very high regard I have always had for him. His life story was amazing: A football hero in college and the NFL, distinguished service in Navy intelligence during World War II, then at the top of his class at Yale law school, a clerk for a Chief Justice of the Supreme Court, and Deputy Attorney General of the United States under Robert Kennedy. In 1961 he played a key role in defending the rights of the Freedom Riders. When John F. Kennedy nominated him for the Supreme Court in 1962, the Senate confirmed him by voice vote. Never having served as a judge before, he wrote over 900 opinions as a Supreme Court Justice.

Byron White was a pro-life Democrat, at a time when the party still allowed that, though he disappointed some Democrats with his abortion dissents – and with his majority opinion in Bowers v. Hardwick (1986) upholding Georgia’s anti-sodomy law. He was the first Supreme Court justice to voice a passionate protest against the Court’s claimed monopoly in determining the status of the innocent unborn, and he inspired those who came after him. A decision in Dobbs that sends Roe to the dustbin of history where it belongs would, I think, be the ultimate tribute to his legacy.

 

*Image: October 18, 1991. Clarence Thomas is sworn as Associate Justice of the Supreme Court by Justice Byron R. White. Looking on are Thomas’s wife, Virginia, First Lady Barbara Bush, and President George H.W. Bush. (Photo courtesy of Justice Thomas/Washington Post)

You may also enjoy:

Justice White dissents (from Roe v. Wade)

John M. Grondelski’s Abortion and the Problem of the “Parental Project”

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