On Monday, the U.S. Supreme Court heard arguments in a high-profile Texas case that blocks most abortions in the state, but a case out of Mississippi — Dobbs v. Jackson Women’s Health, which will be heard next month — could prove more consequential. The case challenges a limit to abortions after 15 weeks, a rational limitation on surgical abortions resembling the French and German 12-week limitation.
The statute’s success requires overturning the Supreme Court’s decision less in Roe v. Wade, as has been widely reported, but in another case decided on the same day as Roe in January 1973: Doe v. Bolton.
Roe addressed an extreme Texas statute that prohibited all abortions save those necessary to save a woman’s life. But Doe invalidated a carefully formulated American Law Institute compromise statute in Georgia with a rational basis, allowing abortions where grave physical harm or serious birth defects were likely.
The Supreme Court is not immune from checks and balances. Overturning earlier rulings is among these and can be undertaken even after 48 years. Decisions have been overruled after long periods in multiple high court cases, including Lochner v. New York (maximum working hours; 32 years); Adkins v. Children’s Hospital (minimum wage; 14 years); Plessy v. Ferguson (segregation; 58 years); Bowers v. Hardwick (sodomy; 17 years); Baker v. Nelson (same sex marriage; 43 years); and Korematsu v. United States (racial distinctions; 74 years).
The main test justifying overruling has been defined by the court in its opinion in Planned Parenthood v. Southeastern Pennsylvia v. Casey (1992) as whether “premises of fact have so far changed to render its central holding irrelevant or unjustifiable” and whether an overruling decision would provide “a response to facts that the country would understand but which the court of an earlier day as its own declarations disclosed had not been able to perceive.”
This standard is fully met in the Mississippi case. The Roe and Doe court did not even consider the potential effect of abortion on demand on sexual mores, unwanted pregnancies and births out of wedlock. In Roe, it recognized “a Victorian social concern to discourage illicit sexual conduct” but declared that “it appears that no court or commentator has taken the argument seriously.” Texas was not advancing the argument in Roe, and, the court wrote, “the appellants and amici contend moreover that this is not a proper state purpose at all.”
Nevertheless, it is the duty of the Supreme Court to consider the arguments the state might have made, lest the inadequacies of a single lawyer deform the Constitution. As stated in Flemming v. Nestor (1960): “we cannot with confidence reject all those alternatives which imaginativeness might bring to mind save that one which might require invalidation of the statute.”
Instead, the Roe court, excluding the possible effect of its decision on sexual behavior, made opposite assumptions, alluding to concerns about “population growth, pollution, poverty and racial overtones.”
However, subsequent research by Secretary of the Treasury Janet Yellen and her Nobel-prize-winning economist husband George Akerlof, appearing in the Quarterly Journal of Economics and the Brookings Review in 1996, made clear that Roe and Doe had dynamic effects, legitimating free love and the “hookup” culture by providing what looked like an assured backup to birth control pills.
The percentage of births to unwed mothers increased from 5.7% in 1970, when birth control pills were already in wide use, to 29% in 2018. Among Black Americans, the percentage of births out of wedlock increased from 38% in 1970 to 71% in 2018. Abortion on demand caused many women to abandon caution, only to discover after pregnancy that because of poverty, parental or consort pressure, religious feeling or biological changes producing a maternal instinct protective of the fetus that they did not want abortions. Similarly, the “deal with it” syndrome that abortion on demand produced among consorts caused the percentages of marriages to those pregnant out of wedlock (“shotgun weddings”) to fall from 43% in 1970 to 9% in 2018.
The Mississippi case will be of little direct consequence. Only a few hundred abortions a year are performed after the 15th week, and only a handful in states with illiberal abortion laws. But it may send a powerful message to young women and their consorts that abortion is no longer a “sure thing” and sexual partners should be chosen more carefully than at present.
A “rational basis” test replacing Doe will denationalize abortion and will restore the American judiciary to what Aristotle and Aquinas and Western European states regarded as its proper function: “corrective justice” vindicating agreed settlements, not “distributive justice” changing agreed rules, the prerogative of the ruler in authoritarian states and the legislatures in democratic ones.
Overruling Doe v. Bolton may be justified not merely by the prolix tests of the legal academy, but because, in the words of Fiorello La Guardia: “When we make a mistake, it’s a beaut.”
George W. Liebmann (email@example.com) is president of the Library Company of the Baltimore Bar and author of “America’s Political Inventors” (Bloomsbury) among other works.