Constitutionally Flawed: An Analysis of Judicial Expansion in Roe v Wade
By Justin Kong
Judges are ‘peculiar’ creatures in a democracy. They are not selected by popular vote, yet the public is expected to follow their decisions. This paradoxical position is particularly the case for the US Supreme Court, one of the most powerful constitutional courts in the world.
Its claim to that power may soon come to an end. In June 2022, the Court delivered its decision in Dobbs v Jackson Women's Health Organization.[1] The case enabled the new conservative bloc of the justices to overturn Roe v Wade, the controversial 1973 precedent that effectively legalised abortion across the nation.[2]
The Court’s radical departure from its own previous decision(s) has attracted intense dispute. Against this backdrop, this article should state from the outset it is not supporting Dobbs. Rather, it seeks to recall the genesis of this ongoing debate. By first examining the basic principles in judicial interpretation, this article submits that Roe has been precarious as its reasoning exceeds the textual limits to the Constitution. It then addresses the ‘living Constitution’ argument, and argues that the Court’s expansive interpretation is untenable. Finally, this article will illustrate the drawbacks to Roe beyond the application of legal rules.
I. Interpretation: The Fundamentals
In considering the Court’s decision, it is useful to remind ourselves of first principles. Judges exist to resolve legal disputes. They do so primarily by interpreting and applying the law.[3] For centuries, the common law world had taken this to mean that when judges are confronted with new legal questions, they simply need to ‘discover’ and later declare the correct answer hidden in the law.
Long since then, this declaratory theory has been dismissed as a mere ‘fairy tale’.[4] For obvious reasons, the legislature cannot foresee every conceivable circumstance in the future when enacting laws. This is particularly the case for a constitutional document, which sets out broad principles by which a state is to be governed. Hence, a constitution is written in necessarily general language to meet varied and changing situations. In resolving the inevitable ambiguities, courts are required to say what the law demands in conditions not specified by the legislature. In other words, judges are obliged to ‘make law’ to fill gaps left by legislators.
When we accept that judges do make law, the issue becomes what constitutes unacceptable law-making. After all, it is the elected legislature, not the judiciary, who has been vested with the power to legislate. Therefore, when engaging in judicial law-making, the court discharges its function by ‘giving effect to the will of the legislature; or, in other words, to the will of the law’.[5] Given the legislature does not have an individual consciousness of its own (it has many in practice), the only way which we can ascertain its intention is from the meaning of the legal text – the only statement which is agreed by the different legislators who voted in approval of it.[6]
II. The ‘Living’ Mistake
Consider, then, the Due Process Clause of the Fourteenth Amendment to the US Constitution:
‘[N]or shall any state deprive any person of life, liberty, or property, without due process of law’.
No matter how the Due Process Clause is read, the Constitution clearly allows the states to deprive any person of life, liberty, or property, insofar as it is done with due process. Yet the Supreme Court has held otherwise. Instead of approaching the text in its plain meaning, the Court has developed what is known as ‘substantive due process’: it proclaimed because some liberties are so fundamental, no government procedures can suffice to justify interference with them.[7] Thus, using this rationale, the Court was able to establish a right to abortion in Roe, where seven out of the nine justices thought was constitutionally protected. Nowhere can such a right be found in the text of the Constitution.
Apologists tend to excuse such interpretations by appealing to the ‘living Constitution’ theory: that courts must give meaning to a text consistent with changing social and moral developments.[8] The best formulation for this school of thought is perhaps contained in Lord Sankey LC’s speech in Edwards v The Attorney General of Canada.[9] There, his Lordship vividly employed the metaphor of the constitution being ‘a living tree capable of growth and expansion’.[10] Accordingly, courts should not ‘cut down [its provisions] by a narrow and technical construction, but rather to give it a large and liberal interpretation’.[11] It is this line of argument which some proponents for judicial intervention in abortion have adopted.
Yet however ‘liberal’, ‘generous’ or ‘purposive’ an interpretation may be, judges can never give a provision a meaning which its language cannot bear. After all, a tree can only grow ‘within its natural limits’.[12] If this were not so, one would not be interpreting, but updating and amending the Constitution.[13] The latter simply goes beyond the judicial role. In asserting that the Due Process Clause's concept of liberty ‘is broad enough to encompass a woman's decision whether or not to terminate her pregnancy’, this is precisely where the Court erred.[14] It failed to duly recognise the parameters set by the text it purports to interpret. Instead, its reasoning was based on its view of the weight different values, such as life and personal autonomy, carry. This makes Roe especially vulnerable when it is at the hands of a differently composed court.
Make no mistake: to focus on the meaning of the text, in light of its context, is by no means promoting ‘the austerity of tabulated legalism’.[15] Rather, quite the reverse. In the case of the Due Process Clause, even under the strictest construction, plainly the Clause neither mandates nor forbids abortion. No such intention can be deduced from the language used. For better or worse, this affords people the chance to accommodate differences of opinion on abortion at a state level.[16]
In short, a clear distinction must be drawn between judges mending gaps in the law, and attempting to fill a gorge with their own legislative aspirations.
III. Beyond Law
Having addressed the legal interpretative dimension of Roe, this article now turns to its social implications. For understandable reasons, Roe has become a cultural symbol for progression in gender equality. The irony being whilst Roe had legally secured women’s reproductive rights for half a century, it failed to resolve the wider social debates surrounding abortion.
Indeed, no court should attempt to do so. Judges may be rational and impassionate in their decision-making. Yet on a divisive matter such as abortion, such an ‘insistence on transparent and rational analysis would be liable to make the process of resolving political differences through negotiation, compromise and the exercise of democratic power more difficult and less likely to succeed’.[17] The political branches, which are more reflective of wider society, are hence better equipped in that regard.
It is sometimes said that judicial value judgements are mostly inevitable in adjudicating human rights cases.[18] For the effective protection of rights, courts frequently conduct proportionality tests in one form or another.[19] That may be true. The problem with that justification in the context of abortion is it involves two diametrically opposed values of the extreme. In Roe, the Court put forward compelling arguments that a blanket ban on abortion would inflict significant distress and harm on the pregnant woman.[20] Conversely, it also recognised that such a right cannot be ‘unqualified, and must be considered against important state interests in regulation’ (for instance, to protect the potential life of the unborn).[21] Leaving aside the issue where the Court did not locate a convincing basis for review, it also failed to provide an objective criterion on which its value judgement was based. Moreover, the Court’s creation of a trimester framework (that the right to an abortion is in effect absolute in the first 12 weeks of pregnancy, whilst the state’s interest to protect the life of the unborn outweighs the women’s privacy in the last 12 weeks) appears arbitrary in how it defines when abortion should cease to be legal during pregnancy.[22] Arbitrary laws forfeit respect.[23]
As Holmes J observed, a constitution is ultimately ‘made for people of fundamentally differing views’.[24] For the long-term security of abortion rights, people must feel that the law is worthy of being respected, even by those who fundamentally disagree with it. The only way this can be done is through a political process where different values are considered and mediated.[25] That is, even when it may produce an unfavourable result for some. By their very nature, courts can never replicate such a function, without trespassing into politics and sacrificing its independence in turn.[26] The recent American experience with Roe and Dobbs demonstrates much is to be lost than gained for the judiciary to do so.
IV. Moral of the Story
In critiquing the Roe decision, this article stresses again it is not supporting its overruling. Instead, it simply points to the fundamental error on which Roe itself was based. In neglecting the natural limits to the Constitution, the Court risked transforming the document from a ‘living tree’ to ‘an unstoppable beanstalk grown from a magic bean’.[27] Magic beanstalks are, of course, fairy tales. We should not believe in magicians who claim their tricks to be real. Still less should we acquiesce to judges who, equally in their black robes, create materials out of thin air. This much is the lesson of the Roe/Dobbs saga.
No doubt for those who criticise the Court’s decision, there are some who do so purely because of their fervent beliefs against abortion. If in challenging the propriety and legitimacy of Roe, this article provokes accusations of supporting these views, this author shall assume the risk. There are some principles worth defending, despite the temporary inconvenience they might bring. The rule of law, which the courts are ultimately bound by, is one such example.
[1] 597 US ___ (2022).
[2] 410 US 113 (1973).
[3] Montesquieu, The Spirit of Laws (1758, London) 226. Montesquieu went as far to suggest that judges are ‘no more than the mouth that pronounces the words of the law’. Whilst this is an extreme description of the judicial role, the statement encapsulates the theoretic function of the courts in a liberal system of government.
[4] Lord Reid, ‘The Judge as Lawmaker’ (1972) 12 JSPTL 22.
[5] Osborn v Bank of the United States 22 US 738 (1824) 866.
[6] In a domestic context, the Supreme Court recently affirmed this approach in R (SC and Others) v Secretary of State for Work and Pensions and Others [2021] UKSC 26, [2022] AC 223 [167]. See also Lord Sales, ‘In Defence of Legislative Intention’ (2019) 48 Aust Bar Rev 6.
[7] Griswold v Connecticut 381 US 479 (1965).
[8] See, eg, Trop v Dulles 356 US 86 (1958) 101.
[9] [1930] AC 124 (PC).
[10] ibid 136.
[11] ibid.
[12] ibid.
[13] S v Zuma and Others 1995 (4) BCLR 401, 412.
[14] Roe (n 2) 153.
[15] Minister of Home Affairs v Fisher [1980] AC 319 (HL) 328.
[16] Jeremy Waldron, ‘The Core of the Case against Judicial Review’ [2006] Yale LJ 1346.
[17] SC (n 6) [171].
[18] Bank Mellat v HM Treasury (No. 2) [2013] UKSC 39, [2014] 1 AC 700 [71].
[19] In the United States, the Supreme Court employs tiered scrutiny when a law comes into conflict with a constitutional right: US v Carolene Products Co 304 US 144 (1938) footnote 4.
[20] Roe (n 2) 153.
[21] ibid 154.
[22] ibid 163-4.
[23] Patrick Devlin, ‘The Enforcement of Morals’ (1959) 45 Proceedings of the British Academy 129.
[24] Lochner v New York 198 US 45 (1905) 76.
[25] Waldron (n 16).
[26] JD and A v UK [2019] ECHR 753 (Joint Partly Dissenting Opinion of Pejchal and Wojtyczek JJ) [11].
[27] Baroness Hale, ‘Beanstalk or Living Instrument? How Tall Can the ECHR Grow?’ (Gray’s Inn Reading, London, 16 June 2011) <https://www.supremecourt.uk/docs/speech_110616.pdf> accessed 1 November 2022.
