A comparative analysis of the doctrinal consequences of interpretive disagreement for implied constitutional rights.
III. THE UNITED STATES United States, officially United States of America, republic (2005 est. pop. 295,734,000), 3,539,227 sq mi (9,166,598 sq km), North America. The United States is the world's third largest country in population and the fourth largest country in area. IMPLIED RIGHT TO AN ABORTION
As with the Australian implied freedom of political communication, a woman's right to an abortion has been implied from the U.S. Constitution by the Supreme Court. (111) Like the Australian implied freedom, the implied right to an abortion has been the subject of intense disagreement as to the legitimacy of the majority's interpretive methodology in recognizing the initial implication. (112) Of course, unlike the interpretive debate over Australian implied freedom, the question of interpretive legitimacy in relation to Roe is largely fueled by extra-legal factors, namely intensely held views on the moral status of the fetus and the right of women to reproductive autonomy. (113) The moral character of the implied rights debate in the United States has energized significant political debate over the implied right and a natural reaction to the claim in this Article, that the Supreme Court's revisions in relation to the implied right to an abortion stem directly from the interpretive controversy about Roe, is that the interpretive arguments merely function as a cipher for these external, value-laden concerns.
However, this critique has its limits: scholars have strongly criticized the interpretive approach in Roe, (114) and further, it is the interpretive controversy that provides the opponents to the implied right with a potent, respectable, and ostensibly os·ten·si·ble
Represented or appearing as such; ostensive: His ostensible purpose was charity, but his real goal was popularity. apolitical a·po·lit·i·cal
1. Having no interest in or association with politics.
2. Having no political relevance or importance: claimed that the President's upcoming trip was purely apolitical. constitutional argument. (115) For example, Justice Scalia, a leading critic of Roe, openly values the right of the unborn fetus (at any stage of in utero development) over the rights of the mother, (116) yet his attack on Roe is not grounded in religion or morality, but rather in the interpretive techniques that the Roe majority did (or did not) employ in grounding the implied right. (117) Whether or not the interpretive disagreement is informed by other concerns, then, it is the interpretive criticisms that the U.S. Supreme Court, like Australia's High Court, has purported to address. (118)
While the constitutional contexts of Australia and the United States are clearly different, (119) with rights occupying a far stronger constitutional position in the latter, (120) the distortions in the development of the Australian implied freedom, namely the influence of judicial self-consciousness about the vulnerability of the right and the lack of contextual support for doctrinal development, are also evident in the development of the U.S. implied abortion right. As with the implied freedom, the interpretive disagreement over the implied fight centers on the privileging of the interpretive methodologies of textualism tex·tu·al·ism
1. Strict adherence to a text, especially of the Scriptures.
2. Textual criticism, especially of the Scriptures.
tex and originalism, and in both legal cultures, it is these arguments that largely fuel the interpretive disagreement over implied rights. (121)
A. Recognizing the Implied Right
The implied right to an abortion was first recognized in the 1973 case Roe v. Wade Roe v. Wade, case decided in 1973 by the U.S. Supreme Court. Along with Doe v. Bolton, this decision legalized abortion in the first trimester of pregnancy. and its companion case of Doe v. Bolton Doe v. Bolton, 410 U.S. 179 (1973), was a landmark decision of the United States Supreme Court overturning the abortion law of Georgia. The Supreme Court's decision was released on January 22, 1973, the same day as the decision in the more well-known case of Roe v. . Importantly, however, the foundation for the Roe decision was established in the 1965 decision of Griswold v. Connecticut Griswold v. Connecticut, case decided in 1965 by the U.S. Supreme Court, establishing a right to privacy in striking down a Connecticut ban on the sale of contraceptives. The Court, through Justice William O. , where the Supreme Court held that Connecticut legislative restrictions on the use of contraceptives by married couples violated a "right of privacy older than the Bill of Rights." (122) The Court held that various provisions of the Constitution, including the First, Fourth, Fifth, and Ninth Amendments, created "zones of privacy," (123) and privacy was a "fundamental personal right." (124) In its decision in Eisenstadt v. Baird Eisenstadt v. Baird, (125) seven years later, the Court extended this holding to unmarried couples, stating that, "[i]f the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted government intrusion into matters so fundamentally affecting a person as the decision whether to bear or , was an important United States Supreme Court case that established the right of unmarried people to possess contraception on the same basis as married couples and, by implication, the right beget be·get
tr.v. be·got , be·got·ten or be·got, be·get·ting, be·gets
1. To father; sire.
2. To cause to exist or occur; produce: Violence begets more violence. a child." (126)
1. The Majority Decision in Roe
A seven justice majority, Chief Justice Burger, and Justices Douglas, Brennan, Stewart, Marshall, Blackmun, and Powell, (127) noted that the Court's previous decisions implying a right of privacy from the provisions of the Constitution protected "fundamental" rights "implicit in Adj. 1. implicit in - in the nature of something though not readily apparent; "shortcomings inherent in our approach"; "an underlying meaning"
underlying, inherent the concept of ordered liberty." (128) Undertaking a detailed examination of the history of abortion The history of abortion, according to anthropologists, dates back to ancient times. There is evidence to suggest that, historically, pregnancies were terminated through a number of methods, including the administration of abortifacient herbs, the use of sharpened implements, the laws, the Court argued that restrictive abortion laws were a relatively recent phenomenon introduced not to save potential lives, but to protect women's health Women's Health Definition
Women's health is the effect of gender on disease and health that encompasses a broad range of biological and psychosocial issues. , an interest that "has largely disappeared." (129) For the Court, the physical and psychological burdens of pregnancy are so great that the right of privacy, whether founded in the concept of personal liberty in the Due Process Clause of the Fourteenth Amendment Fourteenth Amendment, addition to the U.S. Constitution, adopted 1868. The amendment comprises five sections. Section 1
Section 1 of the amendment declares that all persons born or naturalized in the United States are American citizens and citizens , or the Ninth Amendment, which reserves rights to the people, was "broad enough to encompass a woman's decision whether or not to terminate her pregnancy." (130)
The Court held that while the right of personal privacy protecting a woman's right to an abortion is fundamental, this right is not absolute, (131) and access to abortion can be restricted where there is a compelling state interest. (132) Although declining to make a ruling on when life begins, (133) or find that a fetus was a "person" for constitutional purposes, (134) the Court held that the state has interests in the following: first, the health of the mother, which becomes compelling in the second trimester Noun 1. second trimester - time period extending from the 13th to the 27th week of gestation
trimester - a period of three months; especially one of the three three-month periods into which human pregnancy is divided (until this point, the Court held, an abortion was no more dangerous than carrying a pregnancy to term); (135) and second, in the preservation of potential life, which the Court held only becomes compelling at the end of second trimester, when the fetus reaches viability--at which point the Court determined the fetus has the "capability of a meaningful life outside the mother's womb." (136)
B. Interpretive Disagreement
Roe remains one of the most criticized decisions of the Supreme Court, (137) with the majority justices attacked for both the interpretive methodology they employed and the moral consequences of the decision. As discussed in this section, three broad categories of interpretive criticism were raised against the majority decision in Roe. First, critics argued that the implication was not grounded in the interpretive orthodoxy of constitutional text and history. Second, that there was a preferable locale, either the Equal Protection Clause The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, provides that "no state shall… deny to any person within its jurisdiction the equal protection of the laws. or the First Amendment, for the grounding of the fight to an abortion. Third, assuming that the fight to an abortion was a sound implication to draw from the Constitution, the presumption of judicial protection, rather than legislative protection, was ill-conceived. (138)
1. Interpretive Disagreement: Implications and Interpretive Orthodoxy
The key criticism of the Roe decision is that it is not grounded in interpretive orthodoxy. This critique generally manifests in one of three forms.
a. Objection to Implications Generally
The first form of the disagreement with Roe that relies on interpretive orthodoxy is an objection to any theory of implied rights more generally. That is, these commentators object not only to the specific implication in Roe but also to the more general theory of drawing rights-based implications from a written constitution. This objection argues generally that the Constitution enumerates a series of rights, and there is no authority for judges to stray beyond these expressly articulated rights; to allow this would be to "abandon all hope of limiting judicial power." (139) This argument considers judge-made law to be constitutionally suspect when it has "little or no cognizable The adjective "cognizable" has two distinct (and unrelated) applications within the field of law. A cognizable claim or controversy is one that meets the basic criteria of viability for being tried or adjudicated before a particular tribunal. roots in the language or design of the Constitution" (140) and often relies on the historical distinction between America's adoption of a written Constitution, in direct contrast to English constitutionalism con·sti·tu·tion·al·ism
1. Government in which power is distributed and limited by a system of laws that must be obeyed by the rulers.
a. A constitutional system of government.
b. and unwritten law Unwritten rules, principles, and norms that have the effect and force of law though they have not been formally enacted by the government.
Most laws in America are written. The U.S. . (141) For these critics, it is both interpretively and democratically objectionable that the judiciary assumes responsibility for issues not expressly articulated in the written Constitution.
b. Objections to the Privacy Implication
The second form of the disagreement with Roe based on interpretive orthodoxy, while accepting that rights implications can be drawn from the Constitution, is an objection to the implication of privacy from the Due Process Clause. This critique of Roe rests on the premise that neither a strict textualist tex·tu·al·ism
1. Strict adherence to a text, especially of the Scriptures.
2. Textual criticism, especially of the Scriptures.
tex reading of the Constitution nor constitutional history supports the implication of any general privacy right. (142) Similar to the first form of the argument based on interpretive orthodoxy, the opponents of an implied right of privacy contend that "when the Constitution sought to protect private rights it specified them; that it explicitly protects some elements of privacy, but not others, suggests that it did not mean to protect those not mentioned." (143) In spite of the weight of precedent, (144) the claim is that these cases do not establish a general right of privacy, rather, they were indicative of specific privacy interests that had secure grounding in the constitutional text and history. (145)
c. Objections to the Extension of the Privacy Implication to Abortion
The third form of the orthodox interpretive disagreement with Roe argues that while there may in fact be a generalized right of privacy emanating from the Constitution, it cannot extend to an implied right to an abortion because sexual privacy is not mentioned in the Constitution, nor does the constitutional text or history in any form suggest an original intent to protect a right to an abortion. These critics draw on the Court's own supporting argument in Roe, that a right will only be implied if it is "so rooted in the traditions and conscience of our people as to be ranked as fundamental," (146) or "implicit in the concept of ordered liberty," (147) and contend that while this argument can support various other aspects of "privacy," it cannot support a fight to an abortion. The commentators argue that abortion rights are not deeply rooted in the traditions of the United States, (148) as they were not recognized by the drafters of the Constitution, (149) and have been consistently restricted (demonstrating that abortion rights are not implicit in the concept of well-ordered liberty), (150) notwithstanding the Court's questionable historical analysis in Roe. (151) One particular distinction made is that a right to an abortion is "inherently different" from the preceding privacy cases because a "pregnant woman cannot be isolated in her privacy." (152)
2. Interpretive Disagreement. Locale of the Right
The second key criticism of the Court's decision in Roe is that the Court incorrectly based the implied right to an abortion in the Due Process Clause's concept of privacy, instead of locating it in the arguably more secure Equal Protection Clause of the Fourteenth Amendment. (153) For these critics, giving substantive effect to the ostensibly procedural Due Process Clause has always been a contentious exercise for the Court. (154) Therefore, the abortion right would be on a more secure footing if premised instead on the textually enshrined constitutional ideal of political equality and full citizenship. (155)
For these critics, it is axiomatic ax·i·o·mat·ic also ax·i·o·mat·i·cal
Of, relating to, or resembling an axiom; self-evident: "It's axiomatic in politics that voters won't throw out a presidential incumbent unless they think his challenger will that an abortion right be grounded in equal protection jurisprudence jurisprudence (jr'ĭsprd`əns), study of the nature and the origin and development of law. : only women become pregnant, and therefore only women may need an abortion. Women therefore form a discrete class against whom discrimination is perpetuated when the right to an abortion is denied, and any denial of an abortion right forces women to become involuntary "incubators" (156) and perpetuates traditional, constitutionally barred gender roles. (157) Anita L. Allen, a leading proponent of this argument, claims that "[a] constitutional jurisprudence of abortion that expressly draws on the Fourteenth Amendment's language of 'liberty' and 'equal protection' would meld with the reality that many of the root concerns behind privacy arguments are not different from, or in opposition to, the root concerns of the gender equality arguments." (158) For these critics, grounding the implication in the Equal Protection Clause would securely situate sit·u·ate
tr.v. sit·u·at·ed, sit·u·at·ing, sit·u·ates
1. To place in a certain spot or position; locate.
2. To place under particular circumstances or in a given condition.
adj. the abortion right in the text and originalist o·rig·i·nal·ism
The belief that the U.S. Constitution should be interpreted according to the intent of those who composed and adopted it.
o·rig intent of the Constitution and enable the implied right to develop responsively to the concern of those who may have the right.
3. Interpretive Disagreement: Legitimacy and Judicial Overreach overreach
the error in a fast gait when the toe of a hindhoof of a horse strikes and injures the back of the pastern of the leg on the same side.
The third interpretive argument commonly raised by critics of Roe is that, even assuming that the Court was justified in implying a right to an abortion from the Constitution, the assessment of when that right could be overridden should have been left to the state legislatures. The Court in Roe specified that for a state to prohibit abortion, it must serve a compelling state interest and specified the two interests that it considered would satisfy this test: the life of the mother, and the protection of the fetus. (159)
However, these interests were not compelling over the entirety of the pregnancy; rather, the two interests become compelling incrementally. Neither interest is compelling in the first trimester Noun 1. first trimester - time period extending from the first day of the last menstrual period through 12 weeks of gestation
trimester - a period of three months; especially one of the three three-month periods into which human pregnancy is divided , and, therefore, the state is unable to proscribe pro·scribe
tr.v. pro·scribed, pro·scrib·ing, pro·scribes
1. To denounce or condemn.
2. To prohibit; forbid. See Synonyms at forbid.
a. To banish or outlaw (a person). or regulate abortion in the first trimester. (160) The health of the mother becomes compelling in the second trimester. (161) The interest in protecting the fetus becomes compelling only in the third trimester Noun 1. third trimester - time period extending from the 28th week of gestation until delivery
trimester - a period of three months; especially one of the three three-month periods into which human pregnancy is divided , after the fetus reached viability, and, consequently, this interest permits a state to generally prohibit third-trimester abortions). (162) Underlying the Court's trimester trimester /tri·mes·ter/ (-mes´ter) a period of three months.
A period of three months.
The first third or 13 weeks of pregnancy. approach is the implicit assumption that personhood per·son·hood
The state or condition of being a person, especially having those qualities that confer distinct individuality: "finding her own personhood as a campus activist" begins at viability, not conception. (163)
For some critics of Roe, the Court's viability and trimester approach reads like "a set of hospital rules and regulations," (164) and, in essence, is an unprincipled, unjustified, and undemocratic assumption of control over what is a legislative decision. The outlining of a "kind of legislative code ... that will satisfy the Constitution" (165) second-guesses legislative balances, and the Court asked "itself a question the Constitution has not made the Court's business." (166) These critics also make the orthodox interpretive charge that there was no basis for the trimester test in either the text of the U.S. Constitution or its history; thus, the Roe Court assumed responsibility for an essentially legislative decision, and, thereby overstepped the bounds of democratic legitimacy, as the right to set boundaries regarding societal values is a legislative, not a judicial function.
C. Doctrinal Advance and Retreat
1. Maintaining the Core of Roe in the Face of Disagreement
Following Roe, a significant number of states rewrote their abortion laws, ostensibly to comply with the Court's decision. Many cases swiftly arose challenging these laws as contradictory to the Court's ruling in Roe. (167) From the first post-Roe case of Planned Parenthood Planned Parenthood
A service mark used for an organization that provides family planning services. v. Danforth, (168) the interpretive disagreement between the justices was apparent, and in marked contrast to Australia where even opponents of the implied freedom have felt bound to apply Lange, (169) from its inception the implied abortion right has faced enemies within the Supreme Court who have chipped away at various aspects of the doctrine. (170) However, in contrast to the intrajudicial interpretive disagreement following the initial implication of the implied freedom in ACTV ACTV Active
ACTV Azienda del Consorzio Trasporti Veneziano (Venice Public Transport Company, Italy)
ACTV Advanced Compatible Television , the opposing justices in the immediate post-Roe cases did not attack the core of the decision of, either the grounding of the implication in the Fourteenth Amendment Due Process Clause or the trimester framework. Rather, the opposing justices held strongly to the precise words of the decision in Roe and opposed the application of the doctrine to various state abortion-curbing laws. In Danforth, for example, while a majority of the Court actively upheld the letter and spirit of the Roe doctrine, striking down a Missouri statute that required a woman to obtain her husband's consent prior to having an abortion, (171) the dissenting justices argued that even accepting Roe, "[t]he task of policing [Roe] limitation[s] on state police power is and will be a difficult and continuing venture in substantive due process The substantive limitations placed on the content or subject matter of state and federal laws by the Due Process Clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution. ," (172) subsequently holding that limitations on abortion do not "conflict with the statement in Roe." (173)
The dissenter's method of attacking the application of Roe rather than the core of the doctrine successfully swayed some of the majority in a number of cases, including a series of cases upholding restrictions on the use of federal funding for abortions (174) and a number of cases requiting parental or judicial consent in the case of minors. (175) In the face of these decisions, the majority took a protective approach to the core of Roe, conscious of the continued disagreement both on and off the bench over the validity of the initial implication. The upholding of the core can be seen in, for example, City of Akron v. Akron Center for Reproductive Health City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983), was a case in which the United States Supreme Court affirmed its abortion rights jurisprudence. , (176) where a 6-3 majority struck down a law compelling preabortion counseling, requiring a 24-hour waiting period, and requiring all abortions to be performed in a hospital. The majority's self-consciousness about the initial implication was evident, with the opening page of Justice Stewart's opinion for the Court specifying that "arguments continue to be made ... that we erred in interpreting the Constitution.... Nonetheless, the doctrine of stare decisis, while perhaps never entirely persuasive on a constitutional question, is a doctrine that demands respect in a society governed by the rule of law." (177) That the Court chose to state the importance of stare decisis is indicative of both the self-consciousness of the justices about the initial implication, as well as the paucity of the interpretive resources on which the Court had to rely in restating the validity of the initial implication.
A change in Court personnel resulted in heightened interpretive disagreement over the implication, and a shift in the nature of the argumentation of the dissenters dissenters: see nonconformists. . Rather than simply attacking the application of the Roe doctrine, the dissenters began to attack core features of the doctrine. Justice O'Connor, appointed in 1981, wrote the dissenting opinion dissenting opinion n. (See: dissent) in City of Akron and argued that the "trimester or 'three-stage' approach adopted by the Court in Roe, and, in a modified form, employed by the Court to analyze the regulations in these cases, cannot be supported as a legitimate or useful framework for accommodating the woman's right and the State's interests." (178) The dissenters, then, put the majority on notice that they were willing to attack at least part of the Roe implication.
By 1986, a self-conscious Supreme Court began to be swayed by the interpretive arguments of the Roe dissenters, and it was only by a narrow 5-4 majority that the Court invalidated a set of Pennsylvania restrictions on access to abortion in Thornburgh v. American College of Obstetricians and Gynecologists. (179) Justice Blackmun's opinion for the Court strongly defended the Roe doctrine and the initial implication, stating that "the constitutional principles that led this Court to its decisions in 1973 still provide the compelling reason for recognizing the constitutional dimensions of a woman's right to decide whether to end her pregnancy." (180) Justice Blackmun further asserted:
Constitutional rights do not always have easily ascertainable boundaries, and controversy over the meaning of our Nation's most majestic guarantees frequently has been turbulent. As judges, however, we are sworn to uphold the law even when its content gives rise to bitter dispute.... [D]isagreements ... do not ... relieve us of our duty to apply the Constitution faithfully. (181)
The dissenters attributed the defensive nature of the majority's opinion to sensitivity over the inexhaustible criticism over the initial implication:
The decision today appears symptomatic of the Court's own insecurity over its handiwork in Roe v. Wade and the cases following that decision. Aware that in Roe it essentially created something out of nothing and that there are many in this country who hold that decision to be basically illegitimate, the Court responds defensively. Perceiving, in a statute implementing the State's legitimate policy of preferring childbirth to abortion, a threat to or criticism of the decision in Roe v. Wade, the majority indiscriminately strikes down statutory provisions that in no way contravene the right recognized in Roe. (182)
While City of Akron may have put the Roe majority on notice that the interpretive attack was about to shift from the application to the core of the implication, Thornburgh was the first case in which all dissenters attacked the initial implication itself. Chief Justice Burger's dissent argued that "[t]he soundness of our holdings must be tested by the decisions that purport to follow them. If ... today's holding really mean[s] what [it] seem[s] to say, I agree we should reexamine re·ex·am·ine also re-ex·am·ine
tr.v. re·ex·am·ined, re·ex·am·in·ing, re·ex·am·ines
1. To examine again or anew; review.
2. Law To question (a witness) again after cross-examination. Roe." (183) Similarly, Justices White and Rehnquist stated that "the time has come to recognize that Roe v. Wade ... 'departs from a proper understanding' of the Constitution and [should be overruled]." (184) The justices argued that the text of the U.S. Constitution contains no reference to abortion, pregnancy, or reproduction more generally, (185) and even if abortion could be considered "liberty" under the Due Process Clause, it was not so fundamental that "restrictions upon it call into play anything more than the most minimal judicial scrutiny." (186) Justice O'Connor's dissent was equally virulent, focusing on the standard of review and the "outmoded trimester framework" established in Roe as she did in Akron. (187) The dissenting justices, then, appeared ready to attack both the grounding of the implication on orthodox interpretational grounds, as well as the standard of review at the core of the Roe decision.
2. Doctrinal Retreat: Webster v. Reproductive Health Services In Webster v. Reproductive Health Services, 492 U.S. 490, 109 S. Ct. 3040, 106 L. Ed. 2d 410 (1989), the United States Supreme Court reviewed the constitutionality of several Missouri statutes restricting access to Abortion services and counseling.
The Roe opponents finally gained an interpretive majority in the 1989 decision in Webster v. Reproductive Health Services, (188) where a majority of justices, while avoiding overruling Roe outfight v. t. 1. to exceed in fighting; fight more competently; as, He outfought his challengers; the boxer outfought his opponent for eight rounds but lost the bout in the ninth on a knockout s>.
2. to defeat in a battle; as, The French forces outfought the Germans s>. , explicitly rejected the applicability of Roe's trimester test, which would have dictated the level of judicial scrutiny and related presumptions of constitutionality or unconstitutionality and, instead, adopted Justice O'Connor's "undue burden" test. However, disagreement remained amongst the new majority as to the validity of the initial implication. Although various justices were prepared to overrule The refusal by a judge to sustain an objection set forth by an attorney during a trial, such as an objection to a particular question posed to a witness. To make void, annul, supersede, or reject through a subsequent decision or action. Roe, (189) Chief Justice Rehnquist's opinion for the Court specified that the facts of Webster differed from Roe such that the case "affords us no occasion to revisit the holding of Roe." (190) The resulting opinions contributed to what was a fractured and jumbled interpretive approach, with no common interpretive ground amongst the majority and a strong dissent from the minority. (191)
Although the core implication itself remained, (192) the Roe doctrine was modified, with the Chief Justice in dicta Opinions of a judge that do not embody the resolution or determination of the specific case before the court. Expressions in a court's opinion that go beyond the facts before the court and therefore are individual views of the author of the opinion and not binding in subsequent cases explicitly rejecting the trimester framework as "hardly consistent with the notion of a Constitution cast in general terms, as ours is, and usually speaking in general principles, as ours does." (193) Rehnquist revisited his dissent in Thornburgh and, relying on interpretive orthodoxy, held that the "key elements of the Roe framework--trimesters and viability--are not found in the text of the Constitution or in any place else one would expect to find a constitutional principle." (194)
The strong criticism of Roe's strict scrutiny A standard of Judicial Review for a challenged policy in which the court presumes the policy to be invalid unless the government can demonstrate a compelling interest to justify the policy. standard signaled a stronger interpretive disagreement among the justices. Claims that a fundamental right has been infringed are always assessed against a strict-scrutiny standard. (195) Thus, when the Court's rejected of the strict-scrutiny standard in the abortion context, it signaled a rejection of the Roe Court's assessment that the right to an abortion was a fundamental liberty. The result of Webster was to both weaken the implication of a right to abortion generally, as well as to signal a retreat from the Roe Court's more expansive interpretive approach to a constitutional jurisprudence less reliant on implication and more reliant on constitutional text and history.
3. Interpretive Resolution? The Casey Compromise
As a solution to the interpretive controversy, Planned Parenthood of Southeastern Pennsylvania v. Casey (196) was a resounding re·sound
v. re·sound·ed, re·sound·ing, re·sounds
1. To be filled with sound; reverberate: The schoolyard resounded with the laughter of children.
2. failure. Casey involved a Pennsylvania statute that imposed significant restrictions on abortions through informed consent, parental consent, spousal notification, and record-keeping requirements; importantly, Casey presented the Court with an opportunity to directly overrule Roe and clarify the interpretive disagreement that had plagued the implied fight since its initial implication. (197) The justices originally agreed in conference to overrule Roe 5-4, (198) with Chief Justice Rehnquist's draft majority opinion going to the core of the interpretive disagreement and expunging the implication of a right to an abortion as derived from the implied right of privacy from the Constitution. Rehnquist followed his approach in Webster and argued that nothing in the text or history of the Constitution indicated that the document extended so far. (199) Justice Blackmun's dissent upheld and defended Roe in its entirety.
Three justices were uncomfortable with the approaches of Chief Justice Rehnquist and Justice Blackman and sought to effectuate a compromise. These justices, Justices O'Connor, Kennedy and Souter, authored a joint opinion which declined to overrule Roe, instead upholding the "central fight recognized by Roe." (200) Notwithstanding the noted strength of the arguments against the constitutional foundations of the initial implication, (201) the joint opinion held that the principle of stare decisis mandated the upholding of the core of the Roe implication. (202) However, the joint opinion attacked the standard of review that Roe had set down as constitutionally required, and explicitly abandoned Roe's trimester framework, claiming it was a rigid, non-essential holding of Roe, and instead favoring Justice O'Connor's "undue burden" test. (203)
Despite upholding the core implication of a right to an abortion and the broad and sweeping language stating the importance of reproductive freedom for women's privacy, autonomy, and equality, the joint opinion marked a significant retreat from the doctrine set down in Roe. While emphasizing the "essential holding" of Roe, (204) that the Due Process Clause of the U.S. Constitution impliedly protects a woman's fundamental right to an abortion pre-viability, the joint opinion held that although the state cannot proscribe abortion pre-viability, it has a sufficient interest in protecting the health of the mother and the potentiality of human life to regulate abortion so long as the state does not place an "undue burden" on a woman's right to an abortion. (205) The opinion also reiterated that a state may proscribe post-viability abortion completely so long as there is an exception for the health of the mother. (206) Under this ruling, the joint opinion upheld all but the spousal notification provisions in the Pennsylvania legislation, arguing that only the notification provision was an undue burden on a right to an abortion, as it placed a "substantial obstacle in the path of a woman seeking an abortion." (207)
The Casey decision, then, does not reflect a unified interpretive approach. Like the unanimous decision A Unanimous Decision is a winning criterion in several full-contact combat sports, such as boxing, kickboxing, Muay Thai, mixed martial arts and others sports involving striking in which all 3 judges agree on which fighter won the match. of the High Court in Lange, the joint opinion reaffirmed Roe; and like the decision in Lange, the opinion in Casey substantially modified, if not weakened, the initial implication of the right. (208) However, unlike Lange, where the reinterpretation re·in·ter·pret
tr.v. re·in·ter·pret·ed, re·in·ter·pret·ing, re·in·ter·prets
To interpret again or anew.
re of the implied freedom was unanimous, in Casey the interpretive disagreement among the Supreme Court justices was obvious, and although Chief Justice Rehnquist, joined by Justices White, Scalia, and Thomas, concurred in the core aspects of the joint judgment, (209) his opinion explicitly criticized the initial implication as lacking in orthodox interpretive methodology and stated that on this basis Roe should be overturned. (210) Justices Blackmun and Stevens, while concurring with the upholding of the "essential holding" of Roe, dissented from the excising of the trimester framework and adoption of the undue burden standard, arguing that the new standard was manipulable, thus undermining the need for strict scrutiny of the fundamental right to an abortion. (211) Justice Scalia, in a separate opinion, savaged the undue burden test on the same interpretive grounds that motivated the joint justices to retreat from the trimester framework--that it lacked foundation in the Constitution: "The ultimately standardless nature of the 'undue burden' inquiry is a reflection of the underlying fact that the concept has no principled or coherent legal basis." (212)
D. Interpretive Disagreement and Its Consequences Post-Casey (213)
Although Casey is now widely accepted as authoritative, it remains the subject of strong interpretive disagreement. (214) There is a very real fear that new appointees to the Court will facilitate the reconsideration and expungement Expungement is often equated to the sealing or destroying of legal records. Each state offers its own definition of expungement, based on different rules and laws. Generally, expungement can be viewed as the process to "remove from general review" the records pertaining to a case. of the Roe implied right entirely. (215) The Casey compromise has failed to act as the interpretive bridge that the joint opinion writers envisaged. While the joint opinion managed to prevent reconsideration of Roe in the short-term, the attempt to accommodate different interpretive views has created an unstable jurisprudence that exposes both Casey and Roe to the ongoing danger of reconsideration.
This situates the implied abortion right jurisprudence in a very different position than the Australian implied freedom. Whereas in Australia it is the Lange Court's unanimous commitment to text and structure and the resulting paucity of interpretive resources that has affected the development of the implied freedom, in the United States the Casey Court's lack of commitment to the grounding of the implication as well as the self-conscious modifications of the relevant standard of review--against which restrictive legislation will be judged--has had the consequence of fracturing any development of the implied right. Continuing doubts over the grounding of the implied right and the instability of the protective standard have led to stagnation Stagnation
A period of little or no growth in the economy. Economic growth of less than 2-3% is considered stagnation. Sometimes used to describe low trading volume or inactive trading in securities.
A good example of stagnation was the U.S. economy in the 1970s. , manipulation, and a fragmented abortion right jurisprudence.
1. The Continuing Doubt Over the Grounding of the Right and Its Consequences
Although the authors of Casey's joint opinion reaffirmed the Roe Court's holding that the "liberty" in the Fourteenth Amendment's Due Process Clause was the basis for the implied right, it seriously undermined this determination and the consequent security of the right in two ways: by over-reliance on stare decisis, and by undergirding the liberty justification with an equal protection rationale.
a. Over-Reliance on Stare Decisis
First, the joint opinion openly expressed doubts as to how they would have decided the issue de novo [Latin, Anew.] A second time; afresh. A trial or a hearing that is ordered by an appellate court that has reviewed the record of a hearing in a lower court and sent the matter back to the original court for a new trial, as if it had not been previously heard nor decided. , stating that it was only the added force of the doctrine of stare decisis and a need for institutional integrity that compelled the Court to uphold the implication from the Due Process Clause. (216) The concern, of course, is that the three determinative justices in Casey did not state whether, as a matter of constitutional interpretation, Roe was correct or incorrect as a matter of principle. This uncritical adherence to precedent highlights the doubts over the textual and historical foundations of the implied right, and, consequently, results in a dearth of interpretive resources by which the right can be developed in subsequent cases. With no interpretive "touchstone" to refer to, the right necessarily becomes stagnant and, indeed, manipulable to each individual justice's predilections as to the appropriate grounding of the implication. Further, the stare decisis rationale has left the Court open to the criticism that it has threatened its own legitimacy by failing to carefully consider a matter that is practically impossible to remedy through legislative action. (217)
b. Equal Protection Rationale
Second, although recognizing that the right is derived from the "liberty" of the Due Process Clause, the Court referred specifically to the effect of abortion laws on the status of women, arguing that, "[a]n entire generation has come of age free to assume Roe's concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions." (218) As David Strauss David Friedrich Strauss (January 27, 1808 – February 8, 1874), was a German theologian and writer. He scandalized Christian Europe with his portrayal of the "historical Jesus," whose divine nature he denied. has argued, the joint opinion, as well as the separate opinions of Justices Stevens and Blackmun, referred to the status of women as a justification for the perpetuation of the right to an abortion. (219) That is, while the justices specified that the implication was grounded in individual liberty and reproductive autonomy (i.e. the Due Process Clause), their rationale (albeit unformed and unclear) for the implication was a concern for the position of women and a concern that the political process would subordinate women (i.e., Equal Protection Clause concerns). As with the reliance on stare decisis, the unprincipled and unjustified rationalization for upholding the initial implication leaves the implication, in its current form, subject to judicial manipulation and peculiarly vulnerable to reconsideration; it is simply not possible for the right to develop coherently while its underlying raison d'etre rai·son d'ê·tre
n. pl. rai·sons d'être
Reason or justification for existing.
[French : raison, reason + de, of, for + être, to be. is consistently undermined and challenged.
The consequence of the Casey Court's inability to clearly affirm the liberty grounding of the implied fight or to clearly re-situate the right in the Equal Protection Clause has left the right stagnant and susceptible to manipulation. Without a firm grounding, defenders of the fight to an abortion are naturally self-conscious about the basis of the right, and they are left defending the initial implication by whatever means they can. This makes it impossible for the fight to cultivate the clear and developed jurisprudence necessary to respond to various claims of unconstitutionality. Further, opponents of the abortion right are able to constantly question and reassess the basis for the implication, thereby preventing any significant permanent development in the abortion jurisprudence more generally.
This tension is evident in the two key post-Casey cases of Stenberg v. Carhart Stenberg, Attorney General of Nebraska, et al. v. Carhart, 530 U.S. 914 (2000), is a case heard by the Supreme Court of the United States dealing with a Nebraska law which made performing "partial-birth abortion" illegal, without providing exceptions to preserve a mother's (220) and Gonzales v. Carhart Gonzales v. Carhart, 550 U.S. ___ (2007), is a United States Supreme Court case which upheld the Partial-Birth Abortion Ban Act of 2003. The case reached the high court after U.S. , (221) where the intra-Court dispute as to the foundation of the implied fight continued. In Stenberg, for example, while the majority opinion of Justice Breyer specified that the Court would not revisit the legal principles establishing the implied right set down in Casey, Justice Kennedy's dissenting opinion implicitly attacked the basis of the right. Justice Kennedy, who co-authored the joint opinion in Casey, stated:
When the Court reaffirmed the essential holding of Roe, a central premise was that the States retain a critical and legitimate role in legislating on the subject of abortion .... The political processes of the State are not to be foreclosed from enacting laws to promote the life of the unborn and to ensure respect for all human life and its potential. (222)
For Justice Kennedy, while there may exist a right to an abortion in the Constitution, it appears that he does not consider that right to be fundamental in the sense of other rights derived from the "liberty" of the Due Process Clause. The unsettled nature of the initial implied right has enabled Justice Kennedy and the other dissenting justices to continue to challenge the very existence of the right, rather than simply challenging the application of the right to specific circumstances. The Roe opponents in Stenberg thus avoided dissent on questions of application, and thereby forced a subsequent defense of the implication in Roe by those justices supporting the implication. The anti-Roe justices in Stenberg also avoided doctrinal discussions that could have been employed in later cases to develop the right itself.
The interpretive tension over the grounding of the implied right was also noticeable in Gonzales, where the minority opinion of Justice Ginsburg was highly responsive to claims that the implication was contrary to interpretive orthodoxy. Noting the general uncertainty over the continued existence of the implied right to abortion, "Casey's principles, confirming the continuing vitality of the 'essential holding of Roe,' are merely 'assume[d]' for the moment ... rather than 'retained' or 'reaffirmed,'" (223) Justice Ginsburg proceeded to defend the constitutional right to an abortion. However, Justice Ginsburg's dissent departed from the traditional "liberty" defense of the implication and instead seemed to reinterpret re·in·ter·pret
tr.v. re·in·ter·pret·ed, re·in·ter·pret·ing, re·in·ter·prets
To interpret again or anew.
re the basis for the implication on an equal protection footing. She stated, picking up on the comments in Casey, that the implied right was not founded in "some generalized notion of privacy; rather [it] center[s] on a woman's autonomy to determine her life's course, and thus to enjoy equal citizenship stature." (224) Ginsburg, then, is seemingly recasting the basis for the implication in the hope of finding a more secure locale for the right to an abortion.
The Casey joint opinion argued that "[l]iberty finds no refuge in a jurisprudence of doubt," (225) yet the "compromise" of relying on precedent rather than reaffirming the basis for the implied right by principled argument has simply perpetuated doubts over the grounding of the implication. No constitutional doctrine can develop consistently when faced with continuous doubts over its existence and validity. Not only are supporting justices continually forced to opine in a protectionist manner, but the doubts leave supporting justices self-conscious about developing the doctrine by reference to the rationale of the initial implication. The result is a lack of interpretive resources to which justices may refer in developing the right in response to the particular case before them. The reliance on stare decisis in Casey only served to heighten and perpetuate these difficulties. While the focus remains on the basis of the implication, the right itself can never develop in a coherent and consistent manner.
2. The Protective Framework and Standards of Review: Uncertainty and Outcomes
The protective frame of the implied right to an abortion has been continuously and consistently attacked and revised. The uncertainty surrounding both the applicable standard of review, as well as the identification of viability as the crucial point by which to measure acceptable state regulation, has had serious consequences for the development of the implied right.
a. The Undue Burden Test
A fundamental difficulty with the implied abortion right is the lack of textual context or traditional understandings to which the Court can refer in developing the protective framework of the right. Indeed, one of the most problematic aspects of the Roe decision was the establishment of the trimester framework--depending upon the stage of the pregnancy--as the determining factor in analyzing the level of permissible regulation of the abortion right. (226) Not only had the trimester framework faced strong interpretive criticism that it was quasi-legislative and unrooted in the text or historical foundations of the Constitution, it had also proved unsatisfactory in practice and was never consistently applied. (227)
The Casey joint opinion sought to respond to these interpretive criticisms by substituting an "undue burden" standard of review for the trimester-based strict scrutiny standard of set forth in Roe. (228) The Casey joint opinion argued that Roe's trimester framework had "misconceive mis·con·ceive
tr.v. mis·con·ceived, mis·con·ceiv·ing, mis·con·ceives
To interpret incorrectly; misunderstand.
mis [d] the nature of the pregnant woman's interest" pre-viability by construing the right as too absolute. (229) Despite Justice O'Connor's pre-Casey argument that the undue burden test should apply throughout the entirety of the pregnancy, (230) the Casey joint opinion held that the standard would apply only to regulations restricting abortions pre-viability; post-viability the state could regulate to proscribe abortion completely. (231)
As to where the "undue burden" test derived from and how it would apply, the joint justices offered no guidance, stating only that "[n]ot all government intrusion is of necessity unwarranted" (232) and that only where the state regulation "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus nonviable fetus Obstetrics An expelled or delivered fetus which, although living, cannot possibly survive to the point of sustaining life independently, even with support of the best available medical therapy. See Viable Infant. " is there an undue burden on the right to an abortion. (233) The only elucidation of the joint opinion on what a "substantial obstacle" is was itself uninformative un·in·for·ma·tive
Providing little or no information; not informative.
unin·for : "In our considered judgment, an undue burden is an unconstitutional burden." (234)
While the doctrinal shift to an undue burden test was intended to be responsive to orthodox interpretive critiques of the trimester framework, the new undue burden standard has itself been criticized as lacking a constitutional foundation, and for the difficulty of its application-in-fact. (235) In a vicious attack on the undue burden standard, Justice Scalia charged that the standard was a "verbal shell game [to] conceal raw judicial policy choices," (236) and that it is "inherently manipulable and will prove hopelessly unworkable in practice." (237) Chief Justice Rehnquist ominously warned that "it is a standard which is not built to last." (238) The same orthodox interpretive concerns that led to the overturning of the trimester framework, then, are equally applicable to the undue burden standard.
The undue burden test is as equally ungrounded in text or history as was the trimester framework and, since Casey, has itself faced criticism for its lack of content. The consequences for the doctrinal development of the implied right have been significant. With an unclear and ungrounded standard of review, it is not plausible that a consistent jurisprudence will emerge from the Court. Furthermore, the manipulability ma·nip·u·la·ble
Possible to manipulate: a manipulable lever; a manipulable populace.
ma·nip of the standard opens the Court to criticism that the implied right is or is not applied in accordance with the moral preferences of the justices, rather than well-reasoned and well-grounded doctrine. The vulnerability of the standard is particularly visible in the decisions of Stenberg and Gonzales.
i. Stenberg v. Carhart
In Stenberg, (239) a majority of justices criticized the undue burden standard, although no alternative standard of review emerged. (240) Further, the justices' application, and indeed modification, of the Casey standard indicates the incredible malleability malleability, property of a metal describing the ease with which it can be hammered, forged, pressed, or rolled into thin sheets. Metals vary in this respect; pure gold is the most malleable. Silver, copper, aluminum, lead, tin, zinc, and iron are also very malleable. of the undue burden test. Without any rationalization, the majority stated that a Nebraska law banning partial birth abortions constituted an undue burden on the right to an abortion because it did not contain an exception for the health of the mother. (241)
The application of a health exception requirement to pre-viability regulation represents a significant development on Casey, which did not impose a health exception requirement pre-viability even though it required such an exception in post-viability cases. (242) By crafting an exception to the Casey rule, the Court has essentially modified the undue burden standard, giving itself considerably more scope to strike down regulations than under an unadulterated undue burden standard. (243) However, the majority failed to acknowledge that their reasoning represents even an evolution of Casey, instead preferring to maintain that a pre-viability health exception is implicit within the Casey decision. (244) Made up of supporters of a woman's right to an abortion, the majority in Stenberg took a protective approach. Unable to openly question the basis of the judgment they sought to transform, the justices instead manipulated the standard of review, thereby impeding any principled development of the implied right.
ii. Gonzales v. Carhart
In the latest abortion decision, the Court appears to have retreated not only from the Stenberg expansion of Casey but also from the standard outlined in Casey itself. Although the Court purported to apply the undue burden standard, the standard of review for abortion restrictions appears to have been demoted from the highest level of review, the strict scrutiny standard to the lowest level of review, the rational basis test, without any explanation or explication ex·pli·cate
tr.v. ex·pli·cat·ed, ex·pli·cat·ing, ex·pli·cates
To make clear the meaning of; explain. See Synonyms at explain.
[Latin explic of rationale. The majority opinion written by Justice Kennedy stated that "[w]here [the state] has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession." (245) In applying the newly demoted standard to Nebraska's prohibition of partial birth abortions, the Court asserted:
Considerations of marginal safety, including the balance of risks, are within the legislative competence when the regulation is rational and in pursuit of legitimate ends. When standard medical options are available, mere convenience does not suffice to displace them; and if some procedures have different risks than others, it does not follow that the State is altogether barred from imposing reasonable regulations. (246)
The protective frame of the abortion right, then, has significantly contracted under the undue burden standard, which purported to act as a strict scrutiny standard. Justice Scalia's warning in Casey has proved correct: the failure of the joint opinion in Casey to ground the framework of the right in the constitutional text or history has resulted in a test that is both manipulable and unprincipled. The lack of interpretive resources guiding the development of the undue burden standard has meant that application of the test to specific abortion prohibitions has been patchy and inconsistent. As noted above, this was the critique leveled at the Roe majority's trimester framework. However, the consequences for the implied right have proven significantly more dire for the rights-holders than under the trimester framework: the right to an abortion has shifted from a fundamental right accorded strict scrutiny, to one that may be regulated with little constitutional restriction.
In addition to the instability inherent in the undue burden test, the Casey compromise, and consequently the implied fight itself, appears shaky as a result of the joint opinion establishing viability as the "critical fact." (247) The most destabilizing element of viability is the lack of a strong legal justification for nominating it as the point at which the state may restrict access to abortion. (248) A potential life is no more or less potential on either side of viability, yet the Court maintains that the state's interest is controlled by that distinction. (249) As the Court has noted, "legislatures may draw lines which appear arbitrary without the necessity of offering a justification. But courts may not. We must justify the lines we draw." (250) Viability cannot, of course, be justified by reference to constitutional terms or traditions. (251) Indeed, the only justification for making this division that the Court has advanced is the somewhat tautological tau·tol·o·gy
n. pl. tau·tol·o·gies
a. Needless repetition of the same sense in different words; redundancy.
b. An instance of such repetition.
2. observation that viability marks "the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb." (252)
Moreover, the Court has always recognized that viability is difficult to determine and incapable of rigid definition. (253) However, it held in Casey that "[l]iberty must not be extinguished for want of a line that is clear." (254) The Court has also acknowledged that improvements in technology will continue to shrink the period between conception and viability, though it maintains that this will not affect its reasoning. (255) It is questionable whether this prediction is correct: just how much can the window during which a woman is free to obtain an abortion shrink before the right becomes meaningless? (256)
Without a convincing justification, without the possibility of definitive determination, and without any hope that it will cease its corrosive march towards the moment of conception, viability will inevitably need to be reconsidered by the Court. (257) That reconsideration, or its avoidance, cannot but significantly destabilize de·sta·bi·lize
tr.v. de·sta·bi·lized, de·sta·bi·liz·ing, de·sta·bi·liz·es
1. To upset the stability or smooth functioning of: the development of a coherent and comprehensive abortion rights jurisprudence.
E. Preliminary Conclusions
Judicial self-consciousness has pervaded the development of the abortion right implied by Roe, most specifically in the attempt in Casey to restrict the protection of the right and thereby head-off the incessant criticism of the initial implication. The consequences of this disagreement-response cycle have been significant. With respect to the abortion jurisprudence itself, the instincts of Roe supporters have led them to support more protective views of the implied right, for example, regarding parental notice and consent. (258) The problem is, of course, that with the supporters of an abortion right so focused on retaining and defending the right to an abortion, there is little scope for the development of a coherent jurisprudence, and there is a tendency for the supporters to be hostile to any state regulation. Justice White described this phenomenon in Thornburgh, where he stated:
The decision today appears symptomatic of the Court's own insecurity over its handiwork in Roe v. Wade and the cases following that decision. Aware that in Roe it essentially created something out of nothing and that there are many in this country who hold that decision to be basically illegitimate, the Court responds defensively. Perceiving, in a statute implementing the State's legitimate policy of preferring childbirth to abortion, a threat to or criticism of the decision in Roe v. Wade, the majority indiscriminately strikes down statutory provisions that in no way contravene the right recognized in Roe. (259)
That this phenomenon is linked to the defense of Roe is evidenced by the fact that when the abortion right itself has not been threatened, the Roe supporters on the Court have been willing to uphold, for example, laws regarding fetuses as persons and fetal murder. (260) The joint opinion in Casey noted that the Court's expansive defense of the initial implication has actually served the contradictory purpose of casting doubt over Roe. (261) However, the justices' approach in the joint opinion to the interpretive disagreement surrounding Roe was not the same as that of the High Court in Lange, where the grounding of the fight was recast on a more secure doctrinal footing. The joint justices in Casey sought to protect the initial implication by narrowing the potential application of the right to various state regulations of abortion. That is, by increasing the scope of potential state interests, the Casey joint justices were acting to protect the heart of the implied right of abortion itself. The protective compromise, however, has backfired; whether consciously or not, the modified standard of review has proved malleable malleable /mal·le·a·ble/ (mal´e-ah-b'l) susceptible of being beaten out into a thin plate.
1. Capable of being shaped or formed, as by hammering or pressure. and weak, and it has enabled anti-Roe justices to whittle down Verb 1. whittle down - cut away in small pieces
wear away, whittle away
damage - inflict damage upon; "The snow damaged the roof"; "She damaged the car when she hit the tree" the right from something fundamental to something less. So long as the interpretive disagreement continues, affording justices from both sides the opportunity to attack doctrinal developments, the implied fight will never develop a sustainable or coherent jurisprudence.
IV. DOCTRINAL CONSEQUENCES AND BROADER RAMIFICATIONS ramifications npl → Auswirkungen pl
A. Linking Consequences to Implications
This Article demonstrates that the development of both the U.S. implied fight to an abortion and the Australian implied freedom of political communication have been adversely affected by the interpretive controversy surrounding their initial implication. Of course, controversy accompanies judicial determination of the limits of any rights; indeed, controversy is inherent within the nature of rights themselves whether express or implied. One could argue that, contrary to the analysis in this Article, implied rights are no more peculiarly vulnerable to interpretive disagreement and the subsequent doctrinal consequences than express rights.
Even if it were empirically possible to test such an argument, the relative intensity of the disagreement is far less important for the argument in this Article than the effects of that disagreement. Implied rights do suffer from unique problems that demonstrably stem from their origins as implications, and any interpretation of implied fights is likely to be vulnerable to revisions simply because various aspects of text, context, and historical understanding will be advanced as reason to doubt that interpretation. (262) As a result, there will always exist a certain self-consciousness about the vulnerability of the initial implication and the existence of the right. And, at least in the context of the implied abortion right and implied freedom, which both have doubtful textual and historical origins, a paucity of interpretive resources are available to guide the development of a given implication. It is these factors, which are unique to implied rights, that combine to affect the development of implied rights.
1. Judicial Self-Consciousness
In both the United States and Australia, judicial self-consciousness about the initial implication has had significant consequences for the development of the implied fight and implied freedom respectively. In Australia, the High Court's initial implication from broad concepts, unrooted in the text or the traditional history of the framer's intent, received scathing criticism from within the Court itself and from commentators. In a direct response to these criticisms, the Court reformulated the basis of the implied freedom, anchoring it in the text and structure of the Constitution, and thereby bringing it within more traditionally accepted methods of constitutional argument. However, while text and structure have acted as a clear interpretive solution for the grounding of the implication, judicial self-consciousness still pervades the High Court when interpreting the implied freedom. As a consequence of the interpretive disagreement over the initial implication, the justices are reluctant to move beyond the confines of the text and employ extra-constitutional ideas and values necessary to develop various aspects of the implied freedom, such as the coverage of "political communication" and the relevant standard of review.
In the United States, judicial self-consciousness in the Supreme Court has manifested in a very different manner, although with equally significant consequences for the development of the implied right to abortion. Following the interpretive disagreement to the initial implication, rather than developing a unified response either reinforcing the Due Process Clause grounding of the implication or reformulating the basis of the implication in the Equal Protection Clause, the Court fractured. The proponents of the implication aggressively protected and, where possible, expanded the scope of the right. The critics, however, responded by attacking, first the application of the right, and subsequently, core aspects of the implication itself. Self-consciousness prompted the attempted interpretive resolution in Casey; however, the resolution itself was fraught with the same difficulties as the initial implication, that is the failure to ground the right and the protective frame in text and history.
Consequently, in both jurisdictions, the Australian High Court and U.S. Supreme Court were driven to respond to the interpretive disagreement over the initial implication. However, neither court has successfully answered the most significant arguments against the initial implication--that the implications cannot be sufficiently grounded in the text, context, or orthodox historical understanding so as to alleviate the disagreement as to the existence of the implied rights. These arguments are perpetual, and suggest that implied rights will always be accompanied by unresolved disagreement over their existence. Because of the inevitable self-consciousness over disagreement as to implied rights, one preliminary conclusion is that implications are an especially weak form of rights protection, as it appears the judiciary can never fully disengage dis·en·gage
v. dis·en·gaged, dis·en·gag·ing, dis·en·gag·es
1. To release from something that holds fast, connects, or entangles. See Synonyms at extricate.
2. from the initial interpretive controversy, which necessarily stagnates the development of the right itself. This is so whether the implication survives subsequent judicial scrutiny by a bare majority, as in Casey, or has unanimous support, as in Lange.
2. Paucity of Interpretive Resources
In addition to judicial self-consciousness, the development of implied rights are hindered by a paucity of accepted interpretive resources by which developments may be supported. This is evident in both jurisdictions. In the United States, the Supreme Court has developed and modified key elements of the implied right, such as viability, standards of review, the health exception, without ever linking those factors to the initial implication or to any text or history undergirding the initial implication. Conscious of avoiding any reconsideration of the initial implication, and aware that the implication itself is open to attack on orthodox interpretive grounds, the Court has simply avoided any significant delineation of the interpretive methodology employed to develop the implied right.
Similarly, in Australia, although the High Court has clearly located the implied freedom in the text of the Australian Constitution, the unrelenting adherence to text alone has deprived the Court of the interpretive tools necessary to develop the implied freedom in a clear and principled manner. While interpretations of the Australian Constitution will be most secure when supported by textual provisions, text alone is an insecure basis for the recognition and development of a constitutional right. In short, whether the implication is located in the text or in the ether, the lack of interpretive resources to which the courts can refer necessarily impedes any coherent development of implied rights, resulting in a manipulable, unprincipled, and fragmented jurisprudence.
B. Broader Ramifications
Following ACTV, some commentators anticipated that implied constitutional rights would give Australia "everything a written Bill of Rights could give us." (263) The argument was that implied constitutional rights not only acted as an effective substitute for express constitutional rights but also were preferable to express rights because implied rights would be unlimited by text, (264) and therefore any debate over rights would focus on the substantive values of the right rather than the technical meaning of the words. (265) The failure of these arguments as a matter of prediction is indicative of the deeper problem of interpretive disagreement more generally.
Implications are, and will continue to be, an especially weak form of rights protection because, as outlined above, (266) there will always be significant interpretive arguments that count against any implication. That is, it is the contested nature of constitutional interpretation itself that fuels the disagreement about implied rights, and the unrelenting doubts over the textual and historical foundations of the implications will inevitably have a continuing effect on the content of the fights, and, subsequently, on the effectiveness of the right as a protective mechanism. The history of both the implied freedom of political communication and the implied abortion right demonstrates that the post-implication interpretive disagreement has peculiarly significant effects on the content of and protection afforded by the fight, suggesting that where the existence of a fight is subject to attack, that right will inevitably be a weak form of rights protection. This at least suggests that these fights-distortions are a factor that should be considered when assessing the utility of implied rights as a means of protecting fundamental values.
In arguing that interpretive disagreement has significant doctrinal consequences for implied fundamental rights, this Article has sought to contribute to the ongoing debate across constitutional democracies as to how fundamental rights are best protected. In this context, the significant disadvantage of reliance on implied rights is that rights implications will generally rest upon contested methods of constitutional interpretation, either generally or specifically in application. Both the Australian implied freedom of political communication and the U.S. implied abortion fight demonstrate that the subsequent debate over the implication itself, the consequent judicial self-consciousness over that initial implication, and the paucity of interpretive resources with which doctrinal developments could be supported, have an adverse effect on the development of implied fights. In both jurisdictions, despite different judicial reactions to the initial interpretive controversy, the jurisprudence that has emerged from the implied fight and freedom has been manipulable, unprincipled and fragmented.
As a matter of constitutional theory, whether the demonstrated weakness of implied rights is undesirable is only a concern if stronger constitutional fights are preferred. In Australia, where the culture of fights is especially weak, it may be that this form of fights protection is acceptable. However, in the strongly fights-protective culture of the United States
(1.) Roe v. Wade, 410 U.S. 113 (1973). See also the companion case of Doe v. Bolton, 410 U.S. 179 (1973).
(2.) Austl. Cap. Television Pty Ltd PTY LTD Propriety Limited (company structure in Australia) . v Commonwealth (1992), 177 CLR (Common Language Runtime) The runtime engine in Microsoft's .NET platform. The CLR compiles and executes programs in Microsoft Intermediate Language (MSIL). The counterpart to the CLR for the Common Language Infrastructure (CLI), ECMA's standard version of . 106 (Austl.) [A CTV CTV Canadian Television (Network Limited) ]. See also the companion case of Nationwide News Party Ltd. v Wills (I 992) 177 CLR 1 (Austl.).
(3.) See infra [Latin, Below, under, beneath, underneath.] A term employed in legal writing to indicate that the matter designated will appear beneath or in the pages following the reference.
infra prep. notes 38-56, and 113, 137-52 and accompanying text.
(4.) Printz v. United States Printz v. United States, 521 U.S. 898 (1997), was a United States Supreme Court ruling that established the unconstitutionality of certain interim provisions of the Brady Handgun Violence Prevention Act. , 521 U.S. 898, 977 (1997) (Breyer, J., dissenting). On the value of comparative studies more generally, see Mark Tushnet This article or section may contain original research or unverified claims.
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Mark V. , The Possibilities of Comparative Constitutional Law, 108 YALE L.J. 1225, 1228 (1999).
(5.) Albeit under markedly different circumstances. On the American constitutional founding, see AMERICAN LEGAL HISTORY (Kermit L. Hall et al. eds., 2005). On the Australian constitutional founding, see JOHN WILLIAMS This biographical article or section needs additional references for verification.
Please help [ to improve this article] by adding additional sources.
Unverifiable material about living persons must be removed immediately, especially if potentially libelous or harmful. , THE AUSTRALIAN CONSTITUTION: A DOCUMENTARY HISTORY (2005).
(6.) See WILLIAMS, supra A relational DBMS from Cincom Systems, Inc., Cincinnati, OH (www.cincom.com) that runs on IBM mainframes and VAXs. It includes a query language and a program that automates the database design process. note 5.
(7.) Although, in neither constitution is the power of judicial review or the concept of judicial supremacy expressly articulated. See U.S. CONST CONST Construction
CONST Under Construction
CONST Commission for Constitutional Affairs and European Governance (COR) . art. Ill; AUSTRALIAN CONSTITUTION, Ch. Ill. The power was declared by Chief Justice John Marshall in the seminal U.S. case of Marbury v. Madison Marbury v. Madison, case decided in 1803 by the U.S. Supreme Court. William Marbury had been commissioned justice of the peace in the District of Columbia by President John Adams in the "midnight appointments" at the very end of his administration. , 5 U.S. 137 (1803). Marbury was cited as support for the notion of judicial review in the Australian context in Australian Communist Party Communist party, in China
Communist party, in China, ruling party of the world's most populous nation since 1949 and most important Communist party in the world since the disintegration of the USSR in 1991. v Commonwealth (1951), 83 CLR 1, 262 (Austl.), where Justice Fullagar stated "in our system the principle of Marbury v. Madison . . . is accepted as axiomatic." However, it should be noted that the High Court had been exercising the power of judicial review long before the Communist Party declaration. See generally BRIAN GALLIGAN, POLITICS OF THE HIGH COURT (1987) (discussing how politics may affect judicial decisions).
(8.) See, e.g., Sir Anthony Mason
Sir Anthony Frank Mason , The Role of a Constitutional Court in a Federation: A Comparison of the Australian and the United States Experience, 16 FED. L. REV. 1, 6-8 (1986); Gerald N. Rosenberg & John M. Williams, Do Not Go Gently Into that Good Right: The First Amendment in the High Court of Australia The High Court of Australia is the final court of appeal in Australia, the highest court in the Australian court hierarchy. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the , 1997 SUP. CT. REV. 439,443 (1997); L.F. CRISP, AUSTRALIAN NATIONAL GOVERNMENT 75-78 (5th ed. 1983).
(9.) See Rosenberg & Williams, supra note 8, at 449.
(10.) U.S. CONST. amends. I-X.
(11.) See generally TOM CAMPBELL ET AL., PROTECTING RIGHTS WITHOUT A BILL OF RIGHTS: INSTITUTIONAL PERFORMANCE AND REFORM IN AUSTRALIA (2006) (discussing Australia's exceptionalism ex·cep·tion·al·ism
1. The condition of being exceptional or unique.
2. The theory or belief that something, especially a nation, does not conform to a pattern or norm. ).
(12.) On "express rights" under the Australian Constitution, see, for example, HILARY CHARLESWORTH, WRITING IN RIGHTS 30-31 (2002); LESLIE ZINES, THE HIGH COURT AND THE CONSTITUTION 410 (4th ed. 1997); GEORGE WILLIAMS, HUMAN RIGHTS UNDER THE AUSTRALIAN CONSTITUTION (1999); George Winterton, Constitutionally Entrenched Common Law Rights: Sacrificing Means to Ends?, in INTERPRETING CONSTITUTIONS: THEORIES, PRINCIPLES, AND INSTITUTIONS 121 (Charles Sampford & Kim Preston eds., 1996).
(13.) Other provisions that are often considered "express rights" are Section 92 (guaranteeing that interstate trade and commerce is "absolutely free"), and Section51(xiiiA) (preventing civil conscription conscription, compulsory enrollment of personnel for service in the armed forces. Obligatory service in the armed forces has existed since ancient times in many cultures, including the samurai in Japan, warriors in the Aztec Empire, citizen militiamen in ancient of medical practitioners).
(14.) For critiques of the express rights, see, for example, PETER BAILEY, HUMAN RIGHTS: AUSTRALIA IN AN INTERNATIONAL CONTEXT (1990); CHARLESWORTH, supra note 12, at 30-31; WILLIAMS, supra note 12, at 245; ZINES, supra note 12, at 410.
(15.) See Kruger v. Commonwealth (1997), 190 CLR 1, 132 (Austl.) (Gaudron, J.); see also WILLIAMS, supra note 12, at 127-28; Adrienne Stone, Australia's Constitutional Rights and the Problem of Interpretive Disagreement, 27 SYDNEY L. REV. 29, 32 (2005) [hereinafter Stone, Interpretive Disagreement].
(16.) John Rawls John Rawls (February 21, 1921 – November 24, 2002) was an American philosopher, a professor of political philosophy at Harvard University and author of A Theory of Justice (1971), Political Liberalism, , and The Law of Peoples. argues that even when reasonable people debate issues such as constitutional interpretation in good faith, the "burdens of judgment," including the unique formative experiences of their individual lives, can lead them to different conclusions. As a consequence, he claims that "reasonable pluralism" is an "inevitable outcome of free human reason" and a "permanent feature of the public culture of democracy." JOHN RAWLS, POLITICAL LIBERALISM 36-37, 54-57 (1993); see also JEREMY WALDRON Jeremy Waldron (born October 13, 1953, New Zealand) is a professor of law and philosophy at the New York University School of Law. Career
Waldron holds a B.A. (1974) and an LL.B. (1978) from the University of Otago, New Zealand, and a D.Phil. , LAW AND DISAGREEMENT 12, 90--91,263 (1999).
(17.) "The Constitution contains no injunction as to how it is to be interpreted." McGinty v. W. Austl. (1986), 186 CLR 140, 230 (Austl.) (McHugh, J).
(18.) Akhil Reed Amar Akhil Reed Amar (born 1958) is Southmayd Professor of Law at Yale Law School, an expert on constitutional law and criminal procedure. Biography
Amar is a summa cum laude graduate of Yale College (B.A., 1980) and the Yale Law School (J.D. , Intratextualism, 112 HARV HARV High Alpha Research Vehicle (NASA test plane)
HARV High Altitude Research Vehicle
HARV High Altitude Reconnaissance Vehicle . L. REV. 747 (1999); Robert F. Nagel, Disagreement and Interpretation, 56 LAW & CONTEMP. PROBS. 11 (1993); Richard A. Posner, Legal Reasoning from the Top Down and from the Bottom Up: The Question of Unenumerated Constitutional Rights, 59 U. CHI. L. REV. 433 (1992); Stone, Interpretive Disagreement, supra note 15, at 41; David A. Strauss, Common Law Constitutional Interpretation, 63 U. CHI. L. REV. 877, 880-85 (1996). See generally INTERPRETING CONSTITUTIONS: THEORIES, PRINCIPLES, AND INSTITUTIONS (Charles Sampford & Kim Preston eds., 1996).
(19.) AUSTRALIAN CONSTITUTION S 51 (xxxi).
(20.) See Simon Evans Simon Evans (born 9 May 1965), is an English comedian, born in Luton and currently living in London.
Contrary to the Public school image he portrays, Simon did in fact attend Verulam Comprehensive School in St Albans. , Constitutional Property Rights in Australia: Reconciling Individual Rights and the Common Good, in PROTECTING RIGHTS WITHOUT A BILL OF RIGHTS: INSTITUTIONAL PERFORMANCE AND REFORM IN AUSTRALIA 197 (Tom Campbell et al. eds., 2006).
(21.) Stone, Interpretive Disagreement, supra note 15, at 41.
(24.) Austl. Cap. Television Pty Ltd. v Commonwealth (1992), 177 CLR 106 (Austl.) [ACTV]. For a detailed outline of the case, see Dean Bell et al., Note, Implying Guarantees of Freedom into the Constitution: Nationwide News and Australian Capital Television, 16 SYDNEY L. REV. 288 (1994). For scholarly reactions to the decisions see the articles contained in, Symposium, Constitutional Rights for Australia?, 16 SYDNEY L. REV. 141 (1994).
(25.) Nationwide News Party Ltd. v Wills (1992), 177 CLR 1 (Austl.).
(26.) See James Stellios, Using Federalism federalism.
1 In political science, see federal government.
2 In U.S. history, see states' rights.
Political system that binds a group of states into a larger, noncentralized, superior state while allowing them to Protect Political Communication." Implications from Federal Representative Government, 31 MELB MELB Mission Enhancement Little Bird (Army) . U. L. REV. 239 (2007) [hereinafter Stellios, Using Federalism].
(27.) AUSTRALIAN CONSTITUTION S 7, 24. Section 7 reads: "The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate." AUSTRALIAN CONSTITUTION S 7. Section 24 reads: "The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth, and the number of such members shall be, as nearly as practicable, twice the number of senators. The number of members chosen in the several States shall be in proportion to the respective members of their people...." AUSTRALIAN CONSTITUTION S 24. The provision continues to specify the method of selection of representatives, until Parliament provides otherwise.
(28.) AUSTRALIAN CONSTITUTION S 128 (specifying that the Constitution may be amended upon agreement of a majority of people in the majority of states at referendum).
(29.) Nationwide News, 177 CLR at 70 73 (Deane, J., and Toohey, J.); ACTV, 177 CLR at 137 (Mason, C.J.), 209 10 (Gaudron, J.). Note that Chief Justice Mason, with Justices Toohey, Gaudron, and McHugh, drew a distinction between "representative government" and "representative democracy." ACTV, 177 CLR at 130, 199. This distinction is not important for the purposes of this Article. See Adrienne Stone, The Limits of Constitutional Text and Structure." Standards of Review and the Freedom of Political Communication, 23 MELB. U. L. REV. 668, 672 n.17 (1999) [hereinafter Stone, Limits].
(30.) Nationwide News, 177 CLR at 72 (Deane, J. and Toohey, J.); ACTV, 177 CLR at 138-40 (Mason, C.J.), 211 12 (Gaudron, J.).
(31.) See, e.g., Brian Galligan & F.L. Morton, Australian Exceptionalism: Rights Protection Without a Bill of Rights, in PROTECTING RIGHTS WITHOUT A BILL OF RIGHTS: INSTITUTIONAL PERFORMANCE AND REFORM IN AUSTRALIA 17 (Tom Campbell et al. eds., 2006); Jeffrey Goldsworthy, Introduction, in PROTECTING RIGHTS WITHOUT A BILL OF RIGHTS: INSTITUTIONAL PERFORMANCE AND REFORM IN AUSTRALIA 1 (Tom Campbell et al. eds., 2006).
(32.) Leeth v Commonwealth Leeth v Commonwealth (1992) 174 CLR 455 is a High Court of Australia case that deals with the implied right of legal equality in the Australian Constitution. Background
The Commonwealth Prisoners Act (1992) 174 CLR 455, 486 (Austl.) (Deane, J., and Toohey, J.). See generally Justice John Toohey John Leslie Toohey AC QC (born 1930), Australian judge, was a Justice of the High Court of Australia from 1987 to 1998. Education
Toohey was educated at the University of Western Australia, graduating in 1950 with a Bachelor of Arts and a Bachelor of Laws, with first , A Government of Laws, and Not of Men?, 4 PUB. L. REV. 158, 169-70 (1993); George Winterton, Constitutionally Entrenched Common Law Rights. Sacrificing Means to Ends?, in INTERPRETING CONSTITUTIONS: THEORIES, PRINCIPLES, AND INSTITUTIONS 121 (Charles Sampford & Kim Preston eds., 1996); Leslie Zincs, Courts Unmaking the Law, in COURTS IN A REPRESENTATIVE DEMOCRACY 125, 130-34 (Australian Institute of Judicial Administration ed., 1995); Leslie Zincs, The Sovereignty of the People, in POWER, PARLIAMENT AND THE PEOPLE 91, 104 (Michael Coper and George Williams eds., 1997).
(33.) Nationwide News Party Ltd. v Wills (1992), 177 CLR 1, 71 (Austl.) (Dearie, J., and Toohey, J.); Austl. Cap. Television Pty Ltd. v Commonwealth (1992), 177 CLR 106, 137-38 (Austl.) [ACTV] (Mason, C.J.); Theophanous v Herald & Weekly Times Ltd. (1994), 182 CLR 104, 173 (Austl.) (Deane, J.); McGinty v W. Austl. (1996), 186 CLR 140, 199 (Austl.) (Toohey, J.). See generally George Winterton, Popular Sovereignty popular sovereignty, in U.S. history, doctrine under which the status of slavery in the territories was to be determined by the settlers themselves. Although the doctrine won wide support as a means of avoiding sectional conflict over the slavery issue, its meaning and Constitutional Continuity, 26 FED. L. REV. 1 (1998).
(34.) This is a distinctly U.S. view of the democratic relationship and, based on the history of the framing of the Australian Constitution, is not sustainable. See, e.g., Leighton McDonald, The Denizens of Democracy: The High Court and the "Free Speech "' Cases, 5 PUB. L. REV. 160 (1994); Paul Finn, A Sovereign People Sovereign People (Pueblo Soberano) is a political party in Curaçao, the Netherlands Antilles. Pueblo Soberano has a progressive and anti-establishment slant and is headed by controversial leader Helmin Wiels. , a Public Trust, in ESSAYS ON LAW AND GOVERNMENT: PRINCIPLES AND VALUES 1 (Vol. 1, Paul Finn ed., 1995); Stellios, Using Federalism, supra note 26 (manuscript at 4, on file with author); Harley G.A. Wright, Sovereignty of the People--The New Constitutional Grundnorm, 26 FED. L. REV. 165, 168 (1998).
(35.) ACTV, 177 CLR at 227-35 (McHugh, J.), 158-59 (Brennan, J.). See generally Stone, Limits, supra note 29.
(37.) For general analysis of the decisions, see Stone, supra note 29.
(38.) This is most explicitly recognized by Justice Brennan Justice Brennan could refer to:
(39.) See, e.g., NICHOLAS ARONEY, FREEDOM OF SPEECH IN THE CONSTITUTION (1998); Nicholas Aroney, A Seductive Plausibility: Freedom of Speech in the Constitution, 18 U. QLD QLD or Qld Queensland . L. REV. 249 (1995) [hereinafter Aroney, A Seductive Plausibility]; Tom Campbell, Democracy, Human Rights, and Positive Law, 16 SYDNEY L. REV. 195, 204-07 (1994); Stephen Donaghue, The Clamour clam·our
n. & v. Chiefly British
Variant of clamor.
clamour or US clamor
1. a loud protest
2. of Silent Constitutional Principles, 24 FED. L. REV. 133 (1996); Jeffrey Goldsworthy, Implications in Language, Law and the Constitution, in FUTURE DIRECTIONS IN AUSTRALIAN CONSTITUTIONAL LAW 150 (Geoffrey Lindell ed., 1994); Jeffrey Goldsworthy, The High Court, Implied Rights, and Constitutional Change, 39 QUADRANT 46 (1995); Jeffrey Goldsworthy, Constitutional Implications and Freedom of Political Speech: A Reply to Stephen Donaghue, 23 MONASH U. L. REV. 362 (1997); Jeremy Kirk, Constitutional Implications (1): Nature, Legitimacy, Classification, Examples, 24 MELB. U. L. REV. 645 (2000); Jeremy Kirk, Constitutional Implications (II): Doctrines of Equality and Democracy, 25 MELB. U. L. REV. 24 (2001); Stone, Limits, supra note 29; Leslie Zines, A Judicially Created Bill of Rights?, 16 SYDNEY L. REV. 166, 177 (1994) [hereinafter Zines, A Judicially Created Bill of Rights?]. For an excellent overview of the theoretical aspects of the post-ACTV implication debate, see Laurence Claus, Implication and the Concept of a Constitution, 69 AUST. L.J. 887 (1995).
(40.) See, e.g., Aroney, A Seductive Plausibility, supra note 39. Campbell, supra note 39, at 204-07 (1994); Goldsworthy, supra note 39, at 150; Zines, A Judicially Created Bill of Rights?, supra note 39, at 177.
(41.) See, e.g., Stone, Limits, supra note 29; Adrienne Stone, Rights, Personal Rights and Freedoms: The Nature of the Freedom of Political Communication, 25 MELB. U. L. REV. 374 (2001) [hereinafter Stone, Rights]; Adrienne Stone, The Limits of Constitutional Text and Structure Revisited, 28 U.N.S.W.L.J. 842 (2005) [hereinafter Stone, Limits Revisited] (written as a response to a discussion of her ideas by Justice McHugh in Coleman v Power Coleman v Power (2004) 220 CLR 1 is a High Court of Australia case that deals with the implied right to freedom of political communication found in the Australian Constitution. Background
Coleman was a law and politics student from Townsville. (2004) 220 CLR 1 (Austl.)); Winterton, supra note 12, at 121.
(42.) The term "interpretive orthodoxy" was coined by Jeffrey Goldsworthy in Australia: Devotion to Legalism le·gal·ism
1. Strict, literal adherence to the law or to a particular code, as of religion or morality.
2. A legal word, expression, or rule. , in INTERPRETING CONSTITUTIONS: A COMPARATIVE STUDY 106, 147 (Jeffrey Goldsworthy ed., 2006).
(43.) Notably, Justice Dawson did acknowledge that some level of protection for political speech was necessary, that is, Justice Dawson held that the terms of the Constitution enshrined a limited principle of representative government that ensured that elections to the Commonwealth Parliament involved a true choice by electors. See Austl. Cap. Television Pty Ltd. v Commonwealth (1992), 177 CLR 106, 177-202 (Austl.) [ACTV] (Dawson, J., dissenting).
(44.) Theophanous v Herald & Weekly Times Ltd. (1994), 182 CLR 104, 194 (Austl.)(Dawson, J., dissenting); see also Cunliffe, 182 CLR 272, 362 (Dawson, J., dissenting).
(45.) See Austl. Cap. Television Pry Ltd. v Commonwealth (1992), 177 CLR 106, 184 (Austl.) [ACTV] (Dawson, J., dissenting).
(46.) See, e.g., Cunliffe v Commonwealth (1994), 182 CLR 272, 298 at 361 (Dawson, J., dissenting); Austl. Broad. Corp. v Lenah Game Meats Pty Ltd. (2001) 208 CLR 199, 331-02 (Austl.) (Callinan, J.); Jeffrey Goldsworthy, The High Court, Implied Rights, and Constitutional Change, 39 QUADRANT 46 (1995).
(47.) Jeffrey Goldsworthy, Constitutional Implications and Freedom of Political Speech: A Reply to Stephen Donaghue 23 MONASH U. L. REV. 362, 372 (1997); see also Geoffrey Kennet, Implied Rights, in THE CAULDRON OF CONSTITUTIONAL CHANGE 89, 90 (Michael Coper & George Williams eds., 1997); Sir Anthony Mason, The Interpretation of a Constitution in a Modern Liberal Democracy, in INTERPRETING CONSTITUTIONS: THEORIES, PRINCIPLES, AND INSTITUTIONS 13, 28 (Charles Sampford & Kim Preston eds., 1996).
(48.) See also Kennet, supra note 47, at 90; Mason, supra note 47, at 28.
(49.) Cunliffe v Commonwealth (1994) 182 CLR 272, 362 (Austl.) (Dawson, J., dissenting).
(50.) Goldsworthy, supra note 45, at 48-49. Jeffrey Goldsworthy, Implications in Language, Law and the Constitution, in FUTURE DIRECTIONS IN AUSTRALIAN CONSTITUTIONAL LAW 150, 179-80 (Geoffrey Lindell ed., 1994) [hereinatter Goldsworthy, Implications].
(51.) Goldsworthy, supra note 45, at 49; Goldsworthy, Implications, supra note 50, at 180 (Geoffrey Lindell ed., 1994); see also Austl. Broad. Corp. v Lenah Game Meats Pty Ltd. (2001) 208 CLR 199, 331 n.603, 337-38, (Austl.) (Callinan, J.); David Wood David Wood may refer to:
(52.) See Goldsworthy, Implications, supra note 50, at 181; Stone, Limits, supra note 29.
(53.) Stephen Donaghue, The Clamour of Silent Constitutional Principles, 24 FED. L. REV. 133, 134 (1996). See generally Frank H. Easterbrook Frank Hoover Easterbrook (born 1948) is Chief Judge of the United States Court of Appeals for the Seventh Circuit. He has been Chief Judge since November 2006, and has been a judge on the court since 1985. , Abstraction and Authority, 59 U. CHI. L. REV. 349, 374-78 (1992); William H. Rehnquist, The Notion of a Living Constitution, 54 TEX (tai epsion chi) A typesetting language developed by Stanford professor Donald Knuth that is noted for its ability to describe elaborate scientific formulas. Pronounced "tek" or the guttural "tekhhh" (the X is the Greek chi, not the English X), TeX is widely used for mathematical book . L. REV. 693, 696, 698 (1976).
(54.) Although there was a period in Australian constitutional history where the High Court justices held the view that no implications could be made in interpreting the Constitution, implications have been a part of Australian constitutional interpretation since Federation. See, e.g., West v. Comm'r of Taxation (NSW NSW New South Wales
Noun 1. NSW - the agency that provides units to conduct unconventional and counter-guerilla warfare
Naval Special Warfare ) (1937), 56 CLR 657 (Austl.); Stephen Donaghue, The Clamour of Silent Constitutional Principles, 24 FED. L. REV. 133, 134 (1996). For examples of implications drawn from federalism see Melbourne Corp. v. Commonwealth (1947) 74 CLR 31 (Austl.), and Queensland Elect. Comm'n v. Commonwealth (1985) 159 CLR 192 (Austl.).
(55.) Austl. Cap. Television Pty Ltd. v Commonwealth (1992), 177 CLR 106, 185 (Austl.) [ACTV].
(56.) Id. at 181 (Dawson, J.); see also The King v Smithers Smithers is a surname, and may refer to: People
People with the surname Smithers
(57.) Cunliffe v Commonwealth (1993), 182 CLR 272, 395 (Austl.) (McHugh, J.); Theophanous (1994), 182 CLR 104, 195-204 (Austl.) (McHugh, J.); McGinty (1996), 186 CLR 140, 229-36 (Austl.) (McHugh, J.).
(58.) Theophanous, 182 CLR at 197 (McHugh, J.).
(59.) Jeffrey Goldsworthy, Australia: Devotion to Legalism, in INTERPRETING CONSTITUTIONS: A COMPARATIVE STUDY 106, 146 (Jeffrey Goldsworthy ed., 2006).
(60.) See, e.g., Cunliffe,182 CLR 272, 298 (Mason, C.J.); Theophanous, 182 CLR 104, 120-21 (Mason, C.J., Toohey, J., and Gaudron, J.), 147 (Brennan, J.), 163, 180 (Deane, J.); Stephens v W. Austl. Newspapers Ltd. (1994), 182 CLR 211, 232 (Austl.) (Mason, C.J., Toohey, J., and Gaudron, J.); Muldowney v S. Austl. (1996), 186 CLR 352, 373 (Austl.) (Toohey, J.).
(61.) McGinty v W. Austl. (1996) 186 CLR 140, 168-170 (Austl.) (Brennan, C.J.); id. at 182-84 (Dawson, J.), 199 (Toohey, J.), 231-32, 235-36 (McHugh, J.), 291 (Gummow, J.), cf. id. at 216 (Gaudron, J.). On the importance of McGinty, see Lange v Austl. Broad. Corp. (1997), 189 CLR 520, 566-67 (Austl.) (Brennan, C.J., Dawson, J., Toohey, J., Gaudron, J., McHugh, J., Gummow, J., Kirby, J.); David Wiseman, Implied Political Rights and Freedoms, in FEDERAL CONSTITUTIONAL LAW: A CONTEMPORARY VIEW 346 (Melissa Castan & Sarah Joseph
Sarah Joseph is editor of Emel magazine and commentator on British Muslims. eds., 2001). On the influence of Justice McHugh on the interpretive direction of the implied freedom, see Andrew Lynch
Born in Soldotna, Alaska, Andrew Lynch is a singer-songwriter and keyboard player who lives in Los Angeles, California. , Dissent: The Rewards and Risks of Judicial Disagreement in the High Court of Australia, 27 MELB. U. L. R 724, 748 n.113 (2003), and Stone, Limits, supra note 29, at 673.
(62.) Theophanous, 182 CLR at 104; Stephens v W. Austl. Newspapers Ltd. (1994), 182 CLR 211 (Austl.).
(63.) Theophanous, 182 CLR 202. The reference to the "'Engineers' Case" refers to the 1920 case of Amalgamated a·mal·ga·mate
v. a·mal·ga·mat·ed, a·mal·ga·mat·ing, a·mal·ga·mates
1. To combine into a unified or integrated whole; unite. See Synonyms at mix.
2. Soc'y of Eng'rs v Adelaide Steamship steamship, watercraft propelled by a steam engine or a steam turbine. Early Steam-powered Ships
Marquis Claude de Jouffroy d'Abbans is generally credited with the first experimentally successful application of steam power to navigation; in 1783 his Co. Ltd. (1920) 28 CLR 129 (Austl.), in which the Court asserted the dominance of textualism in constitutional interpretation, stating:
It is ... the manifest duty of this Court to turn its earnest attention to the provisions of the Constitution itself. That instrument is the political compact of the whole of the people of Australia ... and it is the chief and special duty of this Court faithfully to expound and give effect to it according to its own terms, finding the intention from the words of the compact, and upholding it throughout precisely as framed.
Id. at 142.
(64.) See Stone, Limits, supra note 29, at 673.
(65.) McGinty v W. Austl. (1996), 186 CLR 140, 168-70 (Austl.) (Brennan, C.J.), 182-184 (Dawson, J.), 199 (Toohey, J.), 231-32, 235-36 (McHugh, J.), 291 (Gummow, J.); Stone, supra note 29, at 673.
(66.) McGinty, 186 CLR at 140 (Austl.) (rejecting the argument that the principle of representative democracy implied a right of equal or equal-sized electorates for the Western Australian State Parliament).
(67.) Id. at 171 (Brennan, C.J.) ("The principle of representative democracy ... can be no wider than--for it is synonymous with--what inheres in the text of the Constitution or in its structure."), 180-83 (Dawson, J.), 233 (McHugh, J.), 281-83 (Gummow, J.).
(68.) George Winterton, Constitutionally Entrenched Common Law Rights: Sacrificing Means to Ends?, in INTERPRETING CONSTITUTIONS: THEORIES, PRINCIPLES, AND INSTITUTIONS 121 (Charles Sampford & Kim Preston eds., 1996).
(69.) Lange v. Austl. Broad. Corp. (1997) 189 CLR 520 (Austl.).
(70.) Harley G.A. Wright, Sovereignty of the People--The New Constitutional Grundnorm, 26 FED. L. REV. 165, 175 (1998); Lange, 189 CLR at 557; see also Andrew Fraser There are several notable people by the name of Andrew Fraser:
(71.) Stellios, Using Federalism, supra note 26, at 243; see also Lange, 189 CLR at 557-59.
(72.) Lange, 189 CLR at 566-67, 557.
(73.) Id. at 538. The Court relied on Section 1 (vesting Commonwealth legislative power to the Parliament), Sections 8 and 30 (electors for the Senate and House of Representatives, respectively, to vote only once), Section 25 (persons of any race disqualified dis·qual·i·fy
tr.v. dis·qual·i·fied, dis·qual·i·fy·ing, dis·qual·i·fies
a. To render unqualified or unfit.
b. To declare unqualified or ineligible.
2. from voting at elections not to be counted in determining Section 24 electorates), Section 28 (duration of the House of Representatives), and section 13 (setting the longest term for Senators at six years). AUSTRALIAN CONSTITUTION S 1, 8, 13, 24, 25, 28, 30.
(74.) Lange, 189 CLR at 558-59 (Austl.). The Court relied on Section 6 (requiring Parliament to sit at least once a year), Section 62 (executive power of the Queen to be exercised on the advice of ministers in cabinet), Section 49 (providing authority for each House of Parliament to summon witnesses or require document production), and Section 83 (requiring that money be appropriated from the treasury in accordance with the law). AUSTRALIAN CONSTITUTION S 6, 49, 62, 83.
(75.) Lange v. Austl. Broad. Corp. (1997), 189 CLR 520, 559 (Austl.).
(76.) Id. at 560-61. Although, as with any constitutional right, the protection accorded to these matters is not absolute and Lange specified a two-stage test by which the impugned law would be judged. Id. at 567. That is, the question of what kinds of communications are protected by the implied freedom is only the first stage of the enquiry. In the constitutional context, if it can be shown that the law said to burden the implied freedom is "reasonably appropriate and adapted to serve a legitimate end," Coleman v Power (2004), 220 CLR 1, 13 (Austl.), the communication will not be protected by the implied freedom. For discussion of the "reasonably appropriate and adapted" test, see Jeremy Kirk, Constitutional Guarantees, Characterisation and the Concept of Proportionality, 21 MELB. U. L. REV. 1 (1997); Stone, Limits, supra note 29.
(77.) Stone, Interpretive Disagreement, supra note 15, at 43; Adrienne Stone & Simon Evans, Freedom of Speech and Insult in the High Court of Australia, 4 INT'L J. CONST. LAW 677, 678 (2006) [hereinafter Stone & Evans, Freedom of Speech and Insult]. For an argument that the High Court is peculiarly responsive to academic criticism, see Michael Coper, The High Court and Free Speech: Visions of Democracy or Delusions of Grandeur Noun 1. delusions of grandeur - a delusion (common in paranoia) that you are much greater and more powerful and influential than you really are
delusion, psychotic belief - (psychology) an erroneous belief that is held in the face of evidence to the contrary ?, 16 SYDNEY L. REV. 185, 194 (1994).
(78.) Excluding the new appointees, Justices Crennan and Keifel, Justice Callinan is alone in expressing doubts as to the legitimacy of the implication. See, e.g., Coleman, 220 CLR at 29-30 (Gleeson, C.J.), 43-44 (McHugh, J.), 78 (Gummow, J., and Hayne, J.), 82 (Kirby, J.), 108-09, 113-14 (Callinan, J.), 120 (Heydon, J,); Mulholland v. Austl. Electoral Comm'n (2004), 220 CLR 181, 200-01 (Austl.) (Gleeson, C.J.), 217-18 (McHugh, J.), 244-45 (Gummow, J., and Hayne, J.), 293-44 (Callinan, J.), 305-06 (Heydon, J.).
(79.) Stone, Limits Revisited, supra note 41, at 845.
(80.) Stone & Evans, Freedom of Speech and Insult, supra note 77, at 687-88 (2006).
(81.) Coleman v Power (2004), 220 CLR 1 (Austl.).
(83.) Coleman, 220 CLR at 30 (Gleeson, C.J.).
(84.) Id. at 54 (McHugh, J.)
(85.) APLA APLA AIDS Project Los Angeles (California)
APLA Asia Pacific and Latin America
APLA Atlantic Provinces Library Association
APLA Antiphospholipid Antibody (syndrome) Ltd. v Legal Servs. Comm'r (NSW)  44 HCA HCA,
n.pr See acid, hydroxycitric. 322 (Austl.) [APLA].
(86.) Id. [paragraph] 14 (Gleeson, C.J., and Heydon, J.).
(87.) Id. [paragraph][paragraph] 60-71 (McHugh, J.); cf Id. [paragraph][paragraph] 217-219 (Gummow, J.), [paragraph] 342 (Kirby, J.), [paragraph][paragraph] 377-382 (Hayne, J.), [paragraph][paragraph] 453, 457-461 (Callinan, J.). See generally Zoe Guest, The Judiciary and the Freedom of Political Communication: The Protection of Judgment on Australia's Judges, 17 PUB. L. REV. 5 (2006).
(88.) APLA, 44 HCA 322, [paragraph] 29 (Gleeson, C.J., and Heydon, J.).
(89.) Id. The irony of this justification is that this remains the key argument against the initial judicial implication and enforcement of the implied freedom.
(90.) Dan Meagher, What is 'Political Communication'? The Rationale and Scope of the Implied Freedom of Political Communication, 28 MELB. U. L. REV. 438 (2004) [hereinafter Meagher, What is 'Political Communication'?]; Zoe Guest, The Judiciary and the Freedom of Political Communication: The Protection of Judgment on Australia's Judges, 17 PUB. L. REV. 5 (2006); Stellios, Using Federalism, supra note 26; Stone, Limits, supra note 29; Stone, Rights, supra note 41; Stone, Interpretive Disagreement, supra note 15.
(91.) Stone, Interpretive Disagreement, supra note 15, at 43; see also Deborah Cass, Through the Looking Glass: The High Court and the Right to Speech, 4 PUB. L. REV. 229, 246 (1994) (arguing that ACTV failed to articulate a theory of free speech and that such a theory was necessary for future development of the implied freedom).
(92.) Stone, Interpretive Disagreement, supra note 15. Indeed, the Court must inevitably draw on some extra-constitutional principles, and attempting to suppress their influence merely prevents the full rationalization of explication of its reasoning. On this point, see, for example, Brian Horrigan, Paradigm Shifts in Interpretation: Reframing Legal and Constitutional Reasoning, in INTERPRETING CONSTITUTIONS: THEORIES, PRINCIPLES, AND INSTITUTIONS 31, 35-36 (Charles Sampford & Kim Preston eds., 1996); Jeremy Kirk, Constitutional Implications (II): Doctrines of Equality and Democracy, 25 MELB. U. L. REV. 24, 52 (2001); Stone & Evans, Freedom of Speech and Insult, supra note 77.
(93.) See Stellios, Using Federalism, supra note 26, at 243-45.
(94.) Jeffrey Goldsworthy, The High Court, Implied Rights, and Constitutional Change, 39 QUADRANT 46 (1995).
(95.) See Stone, Limits, supra note 29, at 696-99.
(96.) Stone, Limits, supra note 29; Stone, Limits Revisited, supra note 41. See also Meagher, What is 'Political Communication'?, supra note 103.
(97.) Levy v Victoria (1997), 189 CLR 579 (Austl.). See Stone, Limits, supra note 29, at 675-87.
(98.) For example, the Lange test was slightly modified by the majority in Coleman. Coleman v Power (2004) 220 CLR l, 30 (Austl.) (Gleeson, C.J.), 57, 61-62 (McHugh, J.). However, that modification was not applied by the other three judges in the subsequent case of APLA. APLA Ltd. v Legal Servs. Comm'r (NSW)  44 HCA 322 (Austl.) [APLA]. Additionally, some judges seem to prefer a form of words that differs from that adopted in Lange, as evidenced in argument during the heating of APLA. See Transcript of Proceedings, APLA (High Court of Australia, 6 October 2004).
(99.) See, e.g., Coleman, 220 CLR 1 (Austl). In Coleman, Chief Justice Gleeson stated that "the balance struck by the [legislature] is not unusual, and I am unable to conclude that the legislation, in its application to this case, is not suitable to the end of maintaining public order in a manner consistent with an appropriate balance of all the various tights, freedoms, and interests, which require consideration." Id. at 32 (emphasis added). Justice Callinan stated that a preferable formulation of the requirement that the legislation in question be "reasonably appropriate and adapted to achieving a legitimate object or end" was whether it was % reasonable implementation of a legitimate object." Id. at 110 (emphasis added). Justice Heydon noted that "[t]he question is not 'Is this provision the best?', but 'Is this provision a reasonably adequate attempt at solving the problem?'" Id. at 124 (emphasis added). While purporting to apply the Lange test, these formulations of the inquiry exhibit a greater willingness to defer to legislative judgments about the regulation of political communication. See also Stellios, Using Federalism, supra note 26; Stone & Evans, Freedom of Speech and Insult, supra note 77, at 679-80.
(100.) See Stone, Limits, supra note 29, at 671.
(101.) Lange v Austl. Broad Corp. (1997), 189 CLR 520, 560-61 (Opinion of the Court).
(102.) Stellios, Using Federalism, supra note 26, 262 (2007).
(103.) Dan Meagher, What is 'Political Communication'?, supra note 103.
(104.) See Stone, Limits, supra note 29.
(107.) See supra note 98 and accompanying text.
(108.) APLA Ltd. v Legal Servs. Comm'r (NSW)  44 HCA 322, [paragraph] 66 (Austl.) [APLA] (McHugh, J.).
(109.) Acknowledging that, Justice McHugh in APLA does recognize a broader category of communications that could be covered by the implied freedom. APLA, 44 HCA 322, [paragraph] 68 (McHugh, J.).
(110.) For a lengthy discussion, see Zoe Guest, The Judiciary and the Freedom of Political Communication: The Protection of Judgment on Australia's Judges, 17 PUB. L. REV. 5 (2006); see also Justice Ronald Sackville Justice Ronald Sackville has been a Judge of the Federal Court of Australia since 1994.
Justice Sackville is a graduate of the University of Melbourne and Yale University. , Speech delivered at the 13th Lucinda Lecture, Monash University Facilities in are diverse and vary in services offered. Information on residential sevices at Monash University, including on-campus (MRS managed) and off-campus, can be found at  Student organisations , How Fragile are the Courts? Freedom of Speech and Criticism of the Judiciary (Aug. 29, 2005).
(111.) Roe v. Wade, 410 U.S. 113 (1973).
(112.) See discussion infra Part III.B.1.
(113.) On the extra-legal factors founding disagreement about Roe even within the Supreme Court, see Jenny R. Kramer, Compliance with Supreme Court Jurisprudence in the Post Roe and Casey Era, 11 SETON HALL CONST. L.J. 529, 567 (2001). See also Geoffrey Stone, UNIVERSITY OF CHICAGO LAW SCHOOL The University of Chicago Law School, having recently celebrated its centennial in the 2002-2003 school year, has established itself as a high profile part of the University of Chicago. FACULTY BLOG (Apr. 20, 2007, 15:01 CT), http://uchicagolaw.typepad.com/faculty/2007/04/ our_faithbased_.html#more.
(114.) See, e.g., Ruth Bader Ginsburg Ruth Joan Bader Ginsburg (born March 15 1933, Brooklyn, New York) is an Associate Justice on the U.S. Supreme Court. Having spent 13 years as a federal judge, but not being a career jurist, she is unique as a Supreme Court justice, having spent the majority of her career as an , Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C.L. REV. 375 (1984-1985); Ruth Bader Ginsburg, Speaking in a Judicial Voice, 67 N.Y.U.L. REV. 1185 (1992); Tyler Baker, Roe and Paris." Does Privacy Have a Principle? 26 STAN. L. REV. 1161 (1974); John Hart Ely John Hart Ely (December 3 1938 - October 25 2003) is one of the most widely-cited legal scholars in United States history, ranking just after Richard Posner, Ronald Dworkin, and Oliver Wendell Holmes, Jr. , The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J. 920 (1973); Richard Epstein, Substantive Due Process By Any Other Name: The Abortion Cases, 1973 SUP. CT. REV. 159 (1973); Richard Gregory Morgan, Roe v. Wade and the Lesson of the Pre-Roe Case Law, 77 MICH v. i. 1. To lie hid; to skulk; to act, or carry one's self, sneakingly. . L. REV. 1724 (1979); Lawrence Tribe, The Supreme Court 1972 Term--Forward: Toward a Model of Roles in the Due Process of Life and Law, 87 HARV. L. REV. 1 (1973). Cf. Ronald Dworkin This article is about the legal philosopher. For the anesthesiologist and author, see Ronald W. Dworkin.
Ronald Dworkin, QC, FBA (born 1931) is an American legal philosopher, and currently professor of Jurisprudence at University College London and the New , Unenumerated Rights Rights that are not expressly mentioned in the written text of a constitution but instead are inferred from the language, history, and structure of the constitution, or cases interpreting it. : Whether and How Roe Should be Overruled, 59 U. CHI. L. REV. 381 (1992).
(115.) David Strauss, Why Was Lochner Wrong? (2003) 70 U. CHI. L. REV. 373, 380. At a more abstract level, see Bobbitt, CONSTITUTIONAL INTERPRETATION 22, 41 (1991).
(116.) Stenberg v. Carhart, 530 U.S. 914, 955 (2000) (Scalia, J., dissenting).
(117.) Justice Scalia argues that abortion is not a liberty protected by the Constitution "because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed PROSCRIBED, civil law. Among the Romans, a man was said to be proscribed when a reward was offered for his head; but the term was more usually applied to those who were sentenced to some punishment which carried with it the consequences of civil death. Code, 9; 49. ." Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 980 (1992) (Scalia, J., dissenting, joined by Rehnquist, C.J., White, J., and Thomas, J.).
(118.) Admittedly, this is a contentious claim. On the moral and religious motivations of the judicial decisions regarding abortion, see, for example, Geoffrey Stone, UNIVERSITY OF CHICAGO LAW SCHOOL FACULTY BLOG (Apr. 20, 2007, 15:01 CT), http://uchicagolaw.typepad.com/faculty/2007/04/ our_faithbased_.html#more.
(119.) Although, note that the two systems are often compared. See, e.g., Michael Dorf Michael Dorf may refer to:
In the philosophy of the social sciences, the view that denies that all large-scale social events and conditions are ultimately explicable in terms of the individuals who participated in, enjoyed, or suffered them. and the Structural Method, or How Charles Black This article is about the law scholar. For the counterfeiter, see Charles Black (counterfeiter).
Charles L. Black, Jr. (born September 22, 1915, Austin, Texas; died May 5, 2001, New York City) was a noted scholar of constitutional law, which he taught as professor of Might Have Thought About Campaign Finance Reform Campaign finance reform is the common term for the political effort in the United States to change the involvement of money in politics, primarily in political campaigns. and Congressional Timidity, 92 GEO. L.J. 833, 842-43 (2004); Andrew Lynch, Dissent: The Rewards and Risks of Judicial Disagreement in the High Court of Australia, 27 MELB. U. L. REV. 724, 746-47, 757, 768 (2003). For an example of comparative work involving free speech, see, for example, William G. Buss, Alexander Meiklejohn Alexander Meiklejohn (February 1, 1872—December 17, 1964) was a philosopher, university administrator, and free-speech advocate. He served as dean of Brown University and president of Amherst College. , American Constitutional Law, and Australia's Implied Freedom of Political Communication, 34 FED. L. REV. 421 (2006); Gerald Rosenberg & John Williams, Do Not Go Gently into that Good Right: The First Amendment in the High Court of Australia, 1997 SUP. CT. REV. 439 (1997).
(120.) The Australian Constitution is "in textual and historical terms ... inhospitable in·hos·pi·ta·ble
1. Displaying no hospitality; unfriendly.
2. Unfavorable to life or growth; hostile: the barren, inhospitable desert. to rights." Stone, Interpretive Disagreement, supra note 15, at 46 (2005); see also Sir Anthony Mason, The Interpretation of a Constitution in a Modern Liberal Democracy, in INTERPRETING CONSTITUTIONS: THEORIES, PRINCIPLES, AND INSTITUTIONS 13, 23 (Charles Sampford & Kim Preston eds., 1996).
(121.) See discussion Part III.B.1; Michael Dorf, Interpretive Holism and the Structural Method, or How Charles Black Might Have Thought About Campaign Finance Reform and Congressional Timidity, 92 GEO. L.J. 833, 839, 843 (2004); David A. Strauss, Common Law Constitutional Interpretation, 63 U. CHI. L. REV. 877, 878 (1996); see also John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J. 920 (1973); Mark Tushnet, Returning With Interest: Observations on Some Putative Benefits of Studying Comparative Constitutional Law, 1 U. PA. J. CONST. L. 325, 335-36 (1998). See also the comments of Justice Scalia in Stenberg v. Carhart, 530 U.S. 918, 956 (2000) (Scalia, J., dissenting).
(122.) Griswold v. Connecticut, 381 U.S. 479, 486 (1965). The Griswold opinion noted a number of earlier cases where the Court had protected privacy and autonomy in family matters, including, for example, Skinner v. Oklahoma Skinner v. State of Oklahoma, Ex. Rel. Williamson, 316 U.S. 535 (1942), was the United States Supreme Court ruling which held that compulsory sterilization could not be sentenced as a punishment for a crime. , 316 U.S. 535 (1942) (procreation PROCREATION. The generation of children; it is an act authorized by the law of nature: one of the principal ends of marriage is the procreation of children. Inst. tit. 2, in pr. ), Pierce v. Society of Sisters Pierce v. Society of Sisters of the Holy Names of Jesus and Mary, , 268 U.S. 510 (1925), and , was an early 20th century United States Supreme Court decision which significantly expanded coverage of the Due Process Clause in the Fourteenth Meyer v. Nebraska Meyer v. Nebraska, 262 U.S. 390 (1923), was a U.S. Supreme Court case which held that a 1919 Nebraska law prohibiting the teaching of foreign languages to school children before high school unconstitutionally violated the Due Process clause of the Fourteenth , 262 U.S. 390 (1923). The Court had also employed the Fourteenth Amendment to invalidate laws relating to relating to relate prep → concernant
relating to relate prep → bezüglich +gen, mit Bezug auf +acc marriage in Loving v. Virginia Loving v. Virginia, , 388 U.S. 1, 12 (1967). , was a landmark civil rights case in which the United States Supreme Court declared Virginia's anti-miscegenation statute, the "Racial Integrity Act of 1924", unconstitutional, thereby
(123.) Griswold, 381 U.S. at 484.
(124.) Id. at 494.
(125.) Eisenstadt v. Baird, 405 U.S. 438 (1972).
(126.) Id. at 453 (emphasis in original).
(127.) The opinion of the Court was authored by Justice Blackmun. Roe v. Wade, 410 U.S. 113, 116 (1973).
(128.) Id. at 152 (referring to the privacy right as derived in Griswold and Eisenstadt) (internal citations omitted).
(129.) Roe, 410 U.S. at 149, 135-36.
(130.) Id at 153. On the foundations of the fight to privacy, see supra notes 122-24 and accompanying text. See also Joel Feinberg, Autonomy, Sovereignty, and Privacy: Moral Ideals in the Constitution?, 58 NOTRE DAME Notre Dame IPA: [nɔtʁ dam] is French for Our Lady, referring to the Virgin Mary. In the United States of America, Notre Dame L. R. 445 (1983); Michael J. Perry, Substantive Due Process Revisited. Reflections on (and Beyond) Recent Cases, 71 NW. U. L. REV. 417 (1976); Jed Rubenfeld Jed Rubenfeld is the Robert R. Slaughter Professor of Law at Yale Law School. He is an expert on constitutional law, criminal law, privacy, and the First Amendment. Biography
Rubenfeld is a summa cum laude graduate of Princeton College (A.B. , The Right of Privacy, 102 HARV. L. REV. 737, 744-52 (1989). Note that Justice Douglas, in his concurring opinion Noun 1. concurring opinion - an opinion that agrees with the court's disposition of the case but is written to express a particular judge's reasoning
judgement, legal opinion, opinion, judgment - the legal document stating the reasons for a judicial decision; , strongly resisted the idea that the Ninth Amendment grounded any enforceable rights, indicating that the implication in Roe rests in the Fourteenth Amendment Due Process Clause.
(131.) Roe, 410 U.S. at 153, 155. This is the case with most constitutional rights: for the Australian implied freedom see, for example, the comments in Austl. Cap. Television Pty. Ltd. v Commonwealth (1992) 177 CLR 106, 142 (Austl.) (Mason, C.J.), 159 (Brennan, J.), 169 (Deane, J., and Toohey, J.), 217 (Gaudron, J.), 234 (McHugh, J.); Nationwide News (1992), 177 CLR 1, 76 (Austl.) (Deane, J., and Toohey, J.).
(132.) Roe, 410 U.S. at 155. On the "compelling interest" test, see, for example, the comments in Bates v. City of Little Rock Bates v. City of Little Rock, 361 U.S. 516 (1960), was a case in which the Supreme Court of the United States held that the First Amendment to the U.S. , 361 U.S. 516, 524 (1960); Roe, 410 U.S. at 173 (Rehnquist, J., dissenting); Doe v. Bolton, 410 U.S. 179, 223 (1973) (Rehnquist, J., dissenting).
(133.) Roe v. Wade, 410 U.S. 113, 159 (1973).
(134.) Id. at 157-58.
(135.) Id. at 163.
(137.) See supra notes 113-14 and accompanying text; see also, Barry Friedman, Dialogue and Judicial Review, 91 MICH. L. REV. 577, 659 (1993). On the backlash created by Roe, see Robert Post Robert Post (born Robert Øien Fylling, 1979 in Langevåg, Norway) is a Norwegian singer/songwriter. He is now based in London and is part of the new 'solo male acoustic' movement that has been gaining popularity as of late. & Reva Seigel, Roe Rage: Democratic Constitutionalism and Backlash, 42 HARV. C.R-C.L.L. REV. 373 (2007).
(138.) Of course, there is significant overlap between these arguments.
(139.) Ronald Dworkin, Unenumerated Rights: Whether and How Roe Should be Overruled, 59 U. CHI. L. REV. 381, 386 (1992) (commenting in the context of criticizing this view). An express fight would, of course, have greater democratic legitimacy. Supporting and opposing this view, see, for example, Poelker v. Doe, 432 U.S. 519, 523 (1977) (Brennan, J., dissenting, joined by Blackman, J., and Marshall, J.); City of Akron v. Akron Ctr. for Reprod. Health Inc., 462 U.S. 416, 465 (1983) (Connor, J., dissenting, joined by White, J., and Rehnquist, J.).
(140.) Bowers v. Hardwick Bowers v. Hardwick, , 478 U.S. 186, 194 (1986). , was a United States Supreme Court decision that upheld the constitutionality of a Georgia sodomy law that criminalized oral and anal sex in private between consenting adults.
(141.) See, e.g., Vanhorne's Lessee v. Dorrance, 2 U.S. (2 Dall.) 304, 308 (C.C.D. Pa. 1795) ("[I]n England there is no written constitution, no fundamental law, nothing visible, nothing real, nothing certain, by which a statute can be tested. In America the case is widely different."). See also the seminal pronouncement in Calder v. Bull Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798), is a famous United States Supreme Court case dealing with Americans' individual rights, and whether the Supreme Court has the authority to review state legislature decisions. , 3 U.S. (3 Dall.) 386, 399 (1798) (Iredell, J., concurring). For an excellent outline of written versus unwritten law, both pre- and post-Roe, see Jed Rubenfeld, The New Unwritten Constitution An unwritten constitution is a constitution made by means of many laws passed over time to decide how things are run in the government.
The following countries can be considered to not have a written constitution:
(142.) See, e.g., Griswold v. Connecticut, 381 U.S. 479, 508 (1965) (Black, J., dissenting, joined by Stewart, J.), 530 (Stewart, J., dissenting); Eisenstadt v. Baird, 405 U.S. 438, 471-72 (1972) (Burger, C.J., dissenting); Schenck v. Pro-Choice Network of W. New York New York, state, United States
New York, Middle Atlantic state of the United States. It is bordered by Vermont, Massachusetts, Connecticut, and the Atlantic Ocean (E), New Jersey and Pennsylvania (S), Lakes Erie and Ontario and the Canadian province of , 519 U.S. 357, 390 (1997) (Scalia, J., concurring and dissenting in part, joined by Kennedy, J., and Thomas, J.); Lawrence v. Texas The Supreme Court issued a landmark decision in Lawrence v. Texas, 539 U.S., 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), striking down state Sodomy laws as applied to gays and lesbians. , 539 U.S. 558, 605-06 (2003) (Thomas, J., dissenting).
(143.) Louis Henkin Louis Henkin is a former president of the American Society of International Law and University Professor emeritus at Columbia Law School. He is now the chairman of the Center for the Study of Human Rights at Columbia University. , Privacy and Autonomy, 74 COLUM. L. REV. 1410, 1422 (1974).
(144.) See, e.g., Paris Adult Theatre I v. Slaton, 413 U.S. 49, 65 (1973); Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974); Hill v. Colorado, 530 U.S. 703, 716-17 (2000). Although note that the Court recently appears to be employing a concept of personal autonomy in preference to privacy. See, e.g., Lawrence v. Texas, 539 U.S. 558, 562, 574 (2003); see also, Martin Belsky, Privacy: The Rehnquist Court's Unmentionable "Right", 36 TULSA L.J. 43, 58 (2000).
(145.) See John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J. 920 (1973). Cf. Philip B. Heymann & Douglas E. Barzelay, The Forest and the Trees: Roe v. Wade and its Critics, 53 B.U.L. REV. 765, 772 (1973) (arguing that the cases establish a sphere of interests called privacy, with the core of this sphere being the "right of the individual to make for himself ... the fundamental decisions that shape family life").
(146.) Snyder v. Massachusetts, 291 U.S. 97, 105 (1934) (cited with approval in Rochin v. California In Rochin v. California, 342 U.S. 165, 72 S. Ct. 205, 96 L. Ed. 183 (1952), the U.S. Supreme Court ruled that it was unconstitutional for police to pump a criminal suspect's stomach and use the resulting evidence at trial. , 342 U.S. 165, 169 (1952)); see also Washington v. Glucksberg, 521 U.S. 702, 721 (1997); Kenyon Bunch, If Racial Desegregation desegregation: see integration. , Then Same-Sex Marriage Noun 1. same-sex marriage - two people of the same sex who live together as a family; "the legal status of same-sex marriages has been hotly debated"
couple, twosome, duet, duo - a pair who associate with one another; "the engaged couple"; "an inseparable ? Originalism and the Supreme Court's Fourteenth Amendment, 28 HARV. J.L. & PUB. POL'Y 781, 836-37 (2005).
(147.) Palko v. Connecticut Palko v. Connecticut, , 302 U.S. 319, 325 (1934) (cited with approval in Rochin v. California, 342 U.S. 165, 169 (1952)); see also Bowers v. Hardwick, 478 U.S. 186, 191 (1986). was a United States Supreme Court case concerning the incorporation of the Fifth Amendment protection against double jeopardy.
(148.) See, e.g., Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 793 (1986) (White, J., dissenting, joined by Rehnquist, J.); Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 980 (1992) (1992) (Scalia, J., concurring and dissenting in part, joined by Rehnquist, C.J., White, J., and Thomas, J.). But compare Glucksberg, 521 U.S. 702, 727-28 (1997), where, in order to resist an expansion of the privacy right, Chief Justice Rehnquist, and Justices Scalia and Thomas, with what might be considered breath-taking hypocrisy, distinguished voluntary euthanasia from "deeply rooted" rights, including abortion.
(149.) Roe v. Wade, 410 U.S. 113, 174-77 (1973) (Rehnquist, J., dissenting).
(150.) Id.; see also Thornburgh, 476 U.S. at 793 (White, J., dissenting, joined by Rehnquist, J.). On the tradition of regulating abortion, see, for example, Kenyon Bunch, If Racial Desegregation, Then Same-Sex Marriage? Originalism and the Supreme Court's Fourteenth Amendment, 28 HARV. J.L. & PUB. POL'Y 781 (2005). See also early Supreme Court cases upholding laws prohibiting abortion, Hawker v. New York Hawker v. New York, 170 U.S. 189 (1898), is a case in which the Supreme Court of the United States upheld a New York state law preventing convicted felons from practicing medicine, even when the felony conviction occurred before the law was enacted. The case
Dr. , 170 U.S. 189 (1898), and Hurwitz v. North, 271 U.S. 40 (1926), and the discussion of those cases in Roy Lucas, Forgotten Supreme Court Abortion Cases: Drs. Hawker & Hurwitz in the Dock and Defrocked, 30 PEPP PEPP Payment Error Prevention Program
PEPP Pediatric Education for Prehospital Professionals
PEPP Professional Engineers in Private Practice (division of NSPE)
PEPP Probation Environmental Preservation Project . L. REV. 641 (2003).
(151.) See, e.g., John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J. 920, 925 n.42 (1973); Norman Vieira, Roe and Doe: Substantive Due Process and the Right of Abortion, 25 HASTINGS L.J. 867, 873 (1974).
(152.) Roe, 410 U.S. 113, 159 (1973). See also Casey, 505 U.S. at 852; David Smolin, Fourteenth Amendment Unenumerated Rights Jurisprudence: An Essay in Response to Stenberg v. Carhart, 24 HARV. J.L. & PUB. POL'Y 815, 830 (2001).
(153.) Note, however, that Ronald Dworkin claims that it is preferable to locate the right in the First Amendment Free Exercise and Establishment clauses. See RONALD DWORKIN, LIFE'S DOMINION: AN ARGUMENT ABOUT ABORTION, EUTHANASIA, AND INDIVIDUAL FREEDOM (1994).
(154.) See, e.g., Richard Epstein, Substantive Due Process By Any Other Name: The Abortion Cases, 1973 SUP. CT. REV. 159 (1973); David Smolin, Fourteenth Amendment Unenumerated Rights Jurisprudence: An Essay in Response to Stenberg v. Carhart, 24 HARV. J.L. & PUB. POL'Y 815, 818 (2001). See also Moore v. City of East Cleveland East Cleveland, city (1990 pop. 33,096), Cuyahoga co., NE Ohio, a suburb of Cleveland; inc. 1911. Mostly residential, it has some declining light industry. It is, however, the site of a General Electric lamp factory and research laboratory. , 431 U.S. 494, 544 (1977) (White, J., dissenting) ("The Judiciary, including this Court is the most vulnerable and comes nearest to illegitimacy illegitimacy: see bastard.
supposed stigma of illegitimate birth. [Heraldry: Misc.]
servant of Bramble family turns out to be illegitimate son of Mr. Bramble. [Br. Lit. when it deals with judge-made constitutional law having little or no cognizable roots in the language or even the design of the Constitution.").
(155.) See Anita L. Allen, The Proposed Equal Protection Fix for Abortion Law Abortion law is legislation which pertains to the provision of abortion. Abortion has at times emerged as a controversial subject in various societies because of the moral and ethical issues that surround it, though other considerations, such as a state's pro- or antinatalist : Reflections on Citizenship, Gender, and the Constitution, 18 HARV. J.L. & PUB. POLICY 419 (1994-1995); Jack M. Balkin, Abortion and Original Meaning, 24 CONST. COMMENT. 291 (2007); Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. REV. 375 (1985); Reva Siegel Reva Siegel is the Nicholas deB. Katzenbach Professor of Law at Yale Law School. She is a specialist in constitutional law and antidiscrimination law, and frequently draws on legal history to explore contemporary issues of inequality and the role of social movements in shaping , Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 STAN. L. REV. 261 (1992).
(156.) Donald H. Regan, Rewriting Roe v. Wade, 77 Mich. L. Rev. 1569 (1979).
(157.) See, e.g., CATHERINE MACKINNON, ROE V. WADE: A STUDY IN MALE IDEOLOGY IN ABORTION MORAL AND LEGAL PERSPECTIVES (1985); Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. REV. 375 (1985); Cass Sunstein Cass R. Sunstein (born 1954) is a prominent law professor at the University of Chicago Law School. Early life and education
Sunstein was born in 1954. He graduated in 1972 from the Middlesex School in Concord, Massachusetts and in 1975 from Harvard College, where he was a , Neutrality in Constitutional Law (with Special Reference to Pornography, Abortion, and Surrogacy surrogacy See Gestational surrogacy. ), 92 COLUM. L. REV. 1 (1992).
(158.) Anita L. Allen, The Proposed Equal Protection Fix for Abortion Law: Reflections on Citizenship, Gender, and the Constitution, 18 HARV. J.L. & PUB. POLICY 419, 420 ( 1994-1995).
(159.) See supra notes 135-36 and accompanying text.
(160.) Roe v. Wade, 410 U.S. 113, 163 (1973).
(162.) Id. at 163-64. Note that viability is the point at which the fetus has the capacity to maintain life outside the uterus.
(163.) On this point, see Erwin Chemerinsky Erwin Chemerinsky (born 1953) is a well-known professor of Constitutional law and federal civil procedure, has recently accepted a position at the University of California, Irvine, in the new Donald Bren School of Law, beginning in 2009. , Rationalizing the Abortion Debate The abortion debate refers to discussion and controversy surrounding the moral and legal status of abortion. The two main groups involved in the abortion debate are the pro-choice movement, which generally supports access to abortion and regards it as morally permissible, and the : Legal Rhetoric and the Abortion Controversy, 31 BUFF. L. REV. 107, 124-25 (1982).
(164.) ARCHIBALD COX Archibald Cox, Jr., (May 12, 1912 – May 29, 2004) was an American lawyer who served as U.S. Solicitor General under President John F. Kennedy, and later became best known as the first special prosecutor for the Watergate scandal. , THE ROLE OF THE SUPREME COURT IN AMERICAN GOVERNMENT 113 (1976).
(165.) Paul A. Freund, Storms over the Supreme Court, 69 A.B.A.J. 1474, 1480 (1983).
(166.) John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J. 920, 943 (1973).
(167.) On this point, see GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? 176 (1991).
(168.) Planned Parenthood of Missouri v. Danforth, 428 U.S. 52, 67-69 (1976).
(169.) See, e.g., Mulholland v Austl. Electoral Comm'n (2004) 220 CLR 181, 293 (Callinan, J.). Although, note that Justice Callinan's approach has been labeled "temporary acquiescence." Andrew Lynch, Dissent: The Rewards and Risks of Judicial Disagreement in the High Court of Australia, 27 MELB. U. L. REV. 724, 767 n.212 (2003).
(170.) Roe v. Wade, 410 U.S. 113, 174-177 (1973) (Rehnquist, J., dissenting); Doe v. Bolton, 410 U.S. 179, 221 (1973) (White, J., dissenting), 207 (Rehnquist, J., dissenting); City of Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416, 420 n.1 (1983).
(171.) Danforth, 428 U.S. at 67-69 (1976). In the case of minors, the law required a parent's consent. Id.; see also Bellotti v. Baird Bellotti v. Baird, 443 U.S. 622 (1979) is a United States Supreme Court case that ruled that teenagers do not have to secure parental consent to obtain an abortion. See also
(172.) Danforth, 428 U.S. at 92 (White, J., concurring in part and dissenting in part).
(173.) Id. at 89 (Stewart, J., concurring).
(174.) See, e.g., Beal v. Doe Beal v. Doe, 432 U.S. 438 (1977), was a United States Supreme Court case that concerned the disbursement of federal funds in Pennsylvania. Pennsylvania statute restricted federal funding to abortion clinics. , 432 U.S. 438 (1977); Maher v. Roe, 432 U.S. 464 (1977); Harris v. McRae Harris v. McRae, 448 U.S. 297 (1980), was a case in which the Supreme Court of the United States held that States that participated in Medicaid were not required to fund medically necessary abortions for which federal reimbursement was unavailable as a result , 448 U.S. 297 (1980).
(175.) See, e.g., H.L. v. Matheson, 450 U.S. 398 (1981); Hodgson v. Minnesota Hodgson v. Minnesota, 497 U.S. 417 (1990), was a United States Supreme Court abortion rights case that dealt with according to which a state law may require notification of both parents before a minor can obtain an abortion, as long as a judicial alternative is present. , 497 U.S. 417 (1990); Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502 (1990).
(176.) City of Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416 (1983).
(177.) Id. at 419-20.
(178.) Id. at 453-54 (O'Connor, J., dissenting).
(179.) Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747 (1986).
(180.) Id. at 759.
(181.) Id. at 771-72.
(182.) Id. at 813-14 (White, J., dissenting, joined by Rehnquist, J.).
(183.) Id. at 785 (Burger, C.J., dissenting).
(184.) Id. at 788 (White, J., dissenting).
(185.) Id. at 789 (White, J., dissenting).
(186.) Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 790 (1986).(White, J., dissenting).
(187.) Id. at 828 (O'Connor, J., dissenting).
(188.) Webster v. Reprod. Health Servs., 492 U.S. 490 (1989).
(189.) JAN CRAWFORD GREENBERG, SUPREME CONFLICT: THE INSIDE STORY OF THE STRUGGLE FOR CONTROL OF THE UNITED STATES SUPREME COURT United States Supreme Court: see Supreme Court, United States. 80-81 (2007).
(190.) Webster, 492 U.S. at 521 (1989) (Opinion of the Court).
(191.) On the fractured nature of the decision, see, for example, A.I.L. Campbell, The Constitution and Abortion, 53 MOD. L. REV. 238 (1990); Walter Dellinger & Gene B. Sperling, Abortion and the Supreme Court: The Retreat from Roe v. Wade, 138 U. PA. L. REV. 83 (1989).
(192.) However, note Justice Scalia's attack on the implication more generally in his separate opinion. Webster, 492 U.S. at 532-37 (Scalia, J., concurring).
(193.) Id. at 518 (Opinion of the Court).
(195.) See, e.g., Skinner v. Oklahoma, 316 U.S. 535, 541 (1942); Kramer v. Union Free School District, 395 U.S. 621, 626-27 (1969); Shapiro v. Thomson, 394 U.S. 618, 634 (1969).
(196.) Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).
(197.) Id. at 833, 877.
(198.) JAN CRAWFORD GREENBERG, SUPREME CONFLICT; THE INSIDE STORY OF THE STRUGGLE FOR CONTROL OF THE UNITED STATES SUPREME COURT 152 -4 (2007).
(200.) Casey, 505 U.S. at 878 (Opinion of the Court). Note that the Bush Administration explicitly asked the Court to overturn Roe. On this, and the Administration's deliberate attempt to stack the Court for this purpose, see generally JAN CRAWFORD GREENBERG, SUPREME CONFLICT; THE INSIDE STORY OF THE STRUGGLE FOR CONTROL OF THE UNITED STATES SUPREME COURT (2007).
(201.) Casey, 505 U.S. at 853.
(202.) Id. at 871 (Opinion of the Court) ("[T]he immediate question is not the soundness of Roe's resolution of the issue, but the precedential force that must be accorded to its holding.").
(203.) Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 877 (1992).
(204.) Id. at 833.
(205.) Id. at 878-79.
(207.) Id. at 878.
(208.) See Lawrence v. Texas, 539 U.S. 558, 588, 595 (2003) (Scalia, J., dissenting, joined by Rehnquist, C.J., and Thomas, J.); see also Martin H. Belsky, Privacy: The Rehnquist Court's Unmentionable "Right", 36 TULSA L.J. 43, 47-50 (2000); Caitlin E. Borgmann, Winter Count: Taking Stock of Abortion Rights After Casey and Carhart, 31 FORDHAM URB URB USB (Universal Serial Bus) Request Block
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(209.) That is, the upholding of the various Pennsylvania laws. See Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 979 (1992) (Rehnquist, C.J., joined by White, J., Sealia, J., and Thomas, J., concurring in part and dissenting in part).
(210.) Id. at 944 (Rehnquist, C.J., joined by White, J., Sealia, J., and Thomas, J., concurring in part and dissenting in part).
(211.) Id. at 930 (Blackmun, J., concurring in part and dissenting in part); id. at 914 (Stevens, J., concurring in part and dissenting in part).
(212.) Id. at 987 (Scalia, J., joined by Rehnquist, C.J., White, J., and Thomas, J., concurring in part and dissenting in part). For scholarly criticisms of the undue burden standard, see, for example, Caitlin E. Borgmann, Winter Count: Taking Stock of Abortion Rights After Casey and Carhart, 31 FORDHAM URB. L.J. 675 (2004); Elizabeth A. Cavendish, Casey Reflections, 10 AM. U. J. GENDER SOC. POL'Y & L. 305 (2002); Hilary Guenther, The Development of the Undue Burden Standard in Stenberg v. Carhart: Will Proposed RU-486 Legislation Survive?, 35 IND. L. REV. 1021 (2002); Sabina Zenkich, X Marks the Sport While Casey Strikes Out: Two Controversial Abortion Decisions, 23 GOLDEN GATE U. L. REV. 1001 (1993).
(213.) The phrase is not overly dramatic in the context of the debate. See Webster v. Reprod. Health Sews., 492 U.S. 490, 538 (1989) (Blackmun, J., joined by Brennan, J., and Marshall, J., concurring and dissenting in part) ("I fear for the future. I fear for the liberty and equality of the millions of women who have lived and come of age in the 16 years since Roe was decided. I fear for the integrity of, and public esteem for, this Court."); Andrew A. Adams, Aborting Roe: Jane Roe Questions the Viability of Roe v. Wade, 9 TEX. REV. L. & POL. 325, 329 (2005) (labeling Roe an "abomination"); Michael Stokes Paulsen, The Worst Constitutional Decision of All Time, 78 NOTRE DAME L. REV. 995, 1001 (2003) (claiming that Casey is '"[t]he Worst' worse, even, than its nearest rivals, Dred Scott v. Sandford In Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 15 L. Ed. 691 (1857), the U.S. Supreme Court faced the divisive issue of Slavery. Chief Justice roger b. taney, a former slaveholder, authored the Court's opinion, holding that the U.S. , Roe v. Wade, and Stenberg v. Carhart").
(214.) See, e.g., Witte v. United States, 515 U.S. 389, 406 (1995) (Scalia, J., concurring, joined by Thomas, J.); United States v. Virginia United States v. Virginia, , 518 U.S. 515, 569 (1996) (Scalia, J., dissenting); Stenberg, 530 U.S. 918, 952 (Rehnquist, C.J., dissenting); id. at 955 (Scalia, J., dissenting); id. at 980 (Thomas, J., dissenting, joined by Rehnquist, C.J., and Scalia, J.); , is case in which the Supreme Court of the United States struck down the Virginia Military Institute's long-standing male-only admission policy in a 7-1 decision. Tennessee v. Lane Tennessee v. Lane, 541 U.S. 509 (2004), was a case in the Supreme Court of the United States involving Congress's enforcement powers under section 5 of the Fourteenth Amendment. , 541 U.S. 509, 556 (2004) (Scalia, J., dissenting); see also McCorvey v. Hill McCorvey v. Hill, 385 F.3d 846 (5th Cir. 2004), was a case in which the principal original litigant in Roe v. Wade, 410 U.S. 113 (1973) Norma McCorvey, also known as 'Jane Roe', requested the overturning of Roe. The U.S. , 385 F.3d 846, 852-53 (5th Cir. 2004) (Jones, J., concurring).
(215.) See generally JAN CRAWFORD GREENBERG, SUPREME CONFLICT: THE INSIDE STORY OF THE STRUGGLE FOR CONTROL OF THE UNITED STATES SUPREME COURT (2007).
(216.) Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 854 (1992) (Opinion of the Court) ("Indeed, the very concept of the rule of law underlying our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable.").
(217.) An additional point could be made that in the context of the Supreme Court's history of overruling key constitutional doctrines, the stare decisis argument is disingenuous. See, e.g., Brown v. Bd. of Educ., 347 U.S. 483 (1954) (overruling Plessy v. Ferguson Plessy v. Ferguson, case decided by the U.S. Supreme Court in 1896. The court upheld an 1890 Louisiana statute mandating racially segregated but equal railroad carriages, ruling that the equal protection clause of the Fourteenth amendment to the U.S. , 163 U.S. 537 (1896)); West Coast Hotel Co. v. Parrish The Supreme Court's decision in West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S. Ct. 578, 81 L. Ed. 703 (1937), marked the end of an era in U.S. constitutional Jurisprudence. , 300 U.S 379 (1937) (overruling Lochner v. New York In Lochner v. New York, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 (1905), the U.S. Supreme Court struck down a state law restricting the hours employees could work in the baking industry, as a violation of the freedom of contract guaranteed by the , 198 U.S. 45 (1905)).
(218.) Referred to in David A. Strauss, Abortion, Toleration TOLERATION. In some. countries, where religion is established by law, certain sects who do not agree with the established religion are nevertheless permitted to exist, and this permission is called toleration. , and Moral Uncertainty, 1992 SUP. CT. REV. I, 3 (1992).
(219.) Id. at 1-3; see also Casey, 505 U.S. at 852 (Opinion of the Court); id. 926-28 (Blackmun, J., concurring in part and dissenting in part).
(220.) Stenberg v. Carhart 530 U.S. 914 (2000).
(221.) Gonzales v. Carhart, 550 U.S. 124 (2007).
(222.) Stenberg, 530 U.S. at 956-57 (2000) (Kennedy, J., dissenting, joined by Rehnquist, C.J.).
(223.) Gonzales, 550 U.S. at 187 (Ginsburg, J., dissenting).
(224.) Id. at 172.
(225.) Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 844 (1992).
(226.) Roe v. Wade, 410 U.S. 113, 164-65 (1973) (Opinion of the Court). On the problems created by the trimester framework, see Casey, 505 U.S. at 845 (Opinion of the Court).
(227.) See, e.g., Webster v. Reprod. Health Servs., 492 U.S. 490, 518 (1989) (Rehnquist, C.J., joined by White, J., and Kennedy, J.); City of Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416, 459 (1983) (O'Connor, J., dissenting) (claiming that the trimester framework has "no justification in law or logic"); see also Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C.L. REV. 375, 381-82 (1985).
(228.) Casey, 505 U.S. at 872-75, 878 (Opinion of the Court); cf. id. at 914 (Stevens, J., concurring and dissenting in part).
(229.) Id. at 873; see also Caitlin E. Borgmann, Winter Count: Taking Stock of Abortion Rights After Casey and Carhart, 31 FORDHAM URB. L.J. 675, 682 (2004).
(230.) See City of Akron, 462 U.S. 416, 452 (O'Connor, J., dissenting).
(231.) Casey, 505 U.S. at 860, 870-71; see also Washington v. Glucksberg, 521 U.S. 702, 784 (1997) (Souter, J., concurring in the judgment). There was some authority for this apparently novel test; see, e.g., Maher v. Roe, 432 U.S. 464, 473-74 (1997) (Opinion of the Court); id. at 489 (Brennan, J., dissenting, joined by Blackmun, J., and Marshall, J.); Bellotti v. Baird, 443 U.S. 622, 640, 648 (1979).
(232.) Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 875 (1992).
(233.) Id. at 877.
(235.) Id. at 964-65 (Rehnquist, C.J., concurring and dissenting in part, joined by White, J., Scalia, J. and Thomas, J.); id. at 985-93 (Scalia, J., concurring and dissenting in part, joined by Rehnquist, C.J., White, J., and Thomas, J.); Caitlin E. Borgmann, Winter Count: Taking Stock of Abortion Rights After Casey and Carhart, 31 FORDHAM URB. L.J. 675, 687-89 (2004). Some of these criticisms appear to have been borne out. See Women's Med. Prof'l Corp. v. Voinovich, 130 F.3d 187, 218-19 (6th Cir. 1997) (Boggs, J., dissenting); Hilary Guenther, The Development of the Undue Burden Standard in Stenberg v. Carhart: Will Proposed RU-486 Legislation Survive?, 35 IND. L. REV. 1021, 1021 (2002).
(236.) Casey, 505 U.S. at 987 (Scalia, J., concurring in part and dissenting in part).
(237.) Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 986 (1992)
(238.) Id. at 965 (Rehnquist, C.J., concurring and dissenting in part, joined by White, J., Scalia, J., and Thomas, J.).
(239.) Stenberg v. Carhart, 530 U.S. 914 (2000).
(240.) See, e.g., Hilary Guenther, The Development of the Undue Burden Standard in Stenberg v. Carhart: Will Proposed RU-486 Legislation Survive?, 35 IND. L. REV. 1021, 1033-34 (2002).
(241.) Stenberg, 530 U.S. at 937-38 (Opinion of the Court); id. at 950 (O'Connor, J., concurring). This was a relatively uncontroversial holding. See Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 79 (1976).
(242.) There may be a limited suggestion in Casey that the health exception applies prior to viability, but the point is not decided. See Casey, 505 U.S. 833, 880 (1992) (O'Connor, J., Kennedy, J., and Souter, J.); cf. Stenberg, 530 U.S. 914, 1011-13 (2000) (Thomas, J., dissenting, joined by Rehnquist, C.J., and Scalia, J.). For additional commentary, see also Caitlin E. Borgmann, Winter Count: Taking Stock of Abortion Rights After Casey and Carhart, 31 FORDHAM URB. L.J. 675, 700 (2004); Hilary Guenther, The Development of the Undue Burden Standard in Stenberg v. Carhart: Will Proposed RU-486 Legislation Survive?, 35 IND. L. REV. 1021, 1028 (2002).
(243.) Stenberg, 530 U.S. at 1011 n.20 (Thomas, J., dissenting, joined by Rehnquist, C.J., and Scalia, J.); see also Aimee Gauthier, Stenberg v. Carhart: Have the States Lost Their Power to Regulate Abortion?, 36 NEW. ENG ENG electronystagmography.
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(244.) Stenberg, 530 U.S. at 930.
(245.) Gonzales v. Carhart, 550 U.S. 124, 158 (2007) (Opinion of the Court) (emphasis added).
(246.) Id. at 166 (emphasis added).
(247.) Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 836, 860 (1992); see also Washington v. Glucksberg, 521 U.S. 702, 784 (1997) (Souter, J., concurring in judgment).
(248.) Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 794 (1986) (White, J., dissenting, joined by Rehnquist, J.); Casey, 505 U.S. 833, 989 n.5 (1992) (Scalia, J., concurring in part and dissenting in part, joined by Rehnquist, C.J., White, J., and Thomas, J.). For a suggestion that Justice Blackmun regarded viability as an arbitrary point while drafting the Roe opinion, see, for example, Roy Lucas, Forgotten Supreme Court Abortion Cases: Drs. Hawker & Hurwitz in the Dock and Defrocked 30 PEPP. L. REV. 641, 665 (2003).
(249.) See City of Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416, 461 (1983) (O'Connor, J., dissenting, joined by White, J., and Rehnquist, J.). See also Thornburgh, 476 U.S. 747, 795 (1986) (White, J., dissenting, joined by Rehnquist, J.).
(250.) Casey, 505 U.S. at 870.
(251.) If any such point was traditionally recognized, it was "quickening." See Roe v. Wade, 410 U.S. 113, 132-39 (1973).
(252.) Casey, 505 U.S. 833, 870 (Opinion of the Court); id. at 929 30 (Blackmun, J., concurring and dissenting in part); see also Roe, 410 U.S. 113, 163 (1973). For criticism of the failure to adequately justify the division, see PHILIP BOBBITT Philip Chase Bobbitt (born July 22, 1948, Temple, Texas), is an American author, academic, and public servant who has also lectured in Britain. He is best known for work on military strategy and constitutional law and theory, and as the author of The Shield of Achilles. , CONSTITUTIONAL FATE: THEORY OF THE CONSTITUTION 159 (1982), and John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J. 920, 924 (1973). Note that the joint opinion did advance a rather unconvincing secondary justification for retaining viability, stating that "there is no line other than viability which is more workable." Casey, 505 U.S. at 870.
(253.) Planned Parenthood of Missouri v. Danforth, 428 U.S. 52, 64 (1976); Colautti v. Franklin, 439 U.S. 379, 387-88 (1979); Webster v. Reprod. Health Servs., 492 U.S. 490, 519-20 (Renhquist, C.J., joined by White, J., and Kennedy, J.); id. at 525 (O'Connor, J.); see also Bruce Ching, Inverting the Viability Test for Abortion Law, 22 WOMEN'S RTS (Request To Send) An RS-232 signal sent from the transmitting station to the receiving station requesting permission to transmit. Contrast with CTS.
1. (operating system) RTS - run-time system.
2. . L. REP. 37, 44 (2000).
(254.) Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 869 (1992).
(255.) Id. at 860; see also Bruce Ching, Inverting the Viability Test for Abortion Law, 22 WOMEN'S RTS. L. REP. 37, 41 (2000).
(256.) Certainly, the following passage would need to be reconsidered: "The viability line also has, as a practical matter, an element of fairness. In some broad sense it might be said that a woman who fails to act before viability has consented to the State's intervention on behalf of the developing chiId." Casey, 505 U.S. at 870 (Opinion of the Court).
(257.) Bruce Ching, Inverting the Viability Test for Abortion Law, 22 WOMEN'S RTS. L. REP. 37, 45 (2000).
(258.) See supra notes 174-77 and accompanying text.
(259.) Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 813-14 (1986) (White, J., dissenting, joined by Rehnquist, J.).
(260.) See Richard Stith, Location and Life: How Stenberg v. Carhart Undercut Roe v. Wade, 9 WM. & MARY J. WOMEN & L. 255, 265-66 (2003).
(261.) Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 845 (1992) (Opinion of the Court).
(262.) See generally Stone, Interpretive Disagreement, supra note 15, at 44 (2005).
(263.) Michael Detmold, The New Constitutional Law, 16 SYDNEY L. REV. 228, 248 (1994).
(264.) This is listed as an argument put against an Australian bill of rights in GEORGE WILLIAMS, A BILL OF RIGHTS FOR AUSTRALIA? (2000).
(265.) CHARLES BLACK, STRUCTURE AND RELATIONSHIP IN CONSTITUTIONAL LAW 13 (1969) (arguing that the structural method "frees us to talk sense" when compared with the textual method, which "in some cases, forces us to blur the focus and talk evasively").
(266.) See supra notes 24-56 and 139-80 and accompanying text.
ZOE ROBINSON, Assistant Professor of Law, DePaul University College of Law DePaul University College of Law is a law school located in Chicago, Illinois, USA. Founded in 1897 as the Illinois College of Law, the school became part of DePaul University in 1912 and is one of the academic colleges of DePaul. . J.D., The University of Chicago Law School; LL.B. (Hons), The Australian National University College of Law; B.A., The Australian National University; B.Mus. (Perf.), Queensland Conservatorium, Griffith University Griffith University is an Australian public university with five campuses in Queensland between Brisbane and the Gold Coast. In 2007 there were more than 33,000 enrolled students and 3,000 staff. . The author is indebted to David Strauss, Tom Ginsburg, Adrienne Stone, and Benjamin May for helpful comments and discussions. A special thanks to the editors of the Washington University Global Studies Law Review for their excellent editing, especially Charlena Aumiller, whose comments and close editing improved the quality of this Article immensely.