Monday, December 10, 2012

Pro-Lifers, Legal History, and Judicial Activism

Election seasons tend to prompt discussion not just about party realignment but also what would happen if Roe v. Wade were overruled. The central role played by Roe in federal judicial nominations has attracted more than its fair share of criticism, and the likely outcome of Roe’s overruling seems predictable enough. The Guttmacher Institute recently put out an explanation of what state abortion policy would dictate in the absence of Roe. All of this, however, tends to ignore what would happen if abortion opponents actually won, since the movement has long endorsed more than the overruling of Roe. As I explore in my current project, antiabortion constitutionalism in the decade after Roe was far more ambitious, proposing the recognition of a right to live rooted in natural law, in the Declaration of Independence, in international human rights principles, and even in pre-Roe substantive due process cases.

Now, we tend to associate antiabortion constitutionalism with the judicial politics of the Right—with commitments to originalism and judicial activism. In the aftermath of Roe, abortion opponents remained skeptical about the idea of originalism (as late as 1977, activist and Fordham Professor Robert Byrn explained that the movement did not need to take a position on the question of judicial activism). Antiabortion attorneys themselves were diverse. Some, like Kenneth Vanderhoef, a Seattle attorney who had represented a local Catholic diocese, believed their religious and professional obligations to be inextricably connected. Others defined themselves as liberals, Reform Jews, or human rights attorneys.

In spite of this diversity, movement members agreed on the broad outline of constitutional change that was strikingly similar to the one promoted by abortion-rights activists in the lead-up to Roe (see David Garrow, Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade (Berkeley: University of California, 1998)). Both constitutional agendas urged the courts to protect an unenumerated right from popular interference and contended that this right represented a logical extension of existing substantive due process law. Something changed, of course, with the advent of the Reagan Administration and the revival of attacks on judicial activism in the early 1980s. Largely for strategic reasons, abortion opponents began framing their own objections as concerns about judicial overreaching, but this shift came for strategic rather than for substantive reasons. Whether abortion opponents changed their ultimate goal or merely adopted a different approach in it, by 1980, incrementalism, a subject that I hope to address in a future post, was already on the rise.