US Supreme Court Justices of the Roberts Court
The Roberts Court (since October 2020), front row (L to R): Samuel Alito, Clarence Thomas, Chief Justice John Roberts, Stephen Breyer, and Sonia Sotomayor. Back row (L to R): Brett Kavanaugh, Elena Kagan, Neil Gorsuch, and Amy Coney Barrett. Credit: Fred Schilling via / Collection of the Supreme Court of the United States
Alan Calandro

About a year ago, I wrote a commentary on the quality of Supreme Court candidate Amy Coney Barrett who, of course, was eventually confirmed. My main point of support besides her personal likeability related to her belief in the “originalist” vs. the “expansive” interpretation of the U.S. Constitution. The originalist view is not perfect or without flaw but it is not ethically corrupt like the expansive view is. To get a sense of why I say that, it is worth watching an interesting debate on the topic between current Justice Stephen Breyer (expansive) and the late Justice Antonin Scalia (originalist) from 2009.

Although I thought that Breyer came across as more likable, pleasant, and persuasive than Scalia, he could not convince me of his view. The reason is that the expansive view introduces discretion into the judgment on the written law. I have always been skeptical of discretion in governmental endeavors even though I recognize its usefulness at times (in public policy there is always some level of gray – even though special-interest groups like to portray things in doomsday black and white). Following the death of George Floyd and others, the use of discretion by police and the justice system has justifiably gained scrutiny. A system populated by human beings in which a certain tipping point of discretion is allowable is rife for corruption. The more discretion, the greater the chances. Why? Because discretion grants power. If you don’t believe that power corrupts, you can move on now (and maybe send an apology note to your high school history teacher).

I have also always been skeptical of “stare decisis” which is the legal doctrine that “obligates courts to follow historical cases when making a ruling on a similar case … and binds courts to follow legal precedents set by previous decisions.” I do understand that it makes sense for the functionality of the legal system to have some mutual expectations to go by, but on the other hand, upholding a wrong-headed precedent is just nonsensical. Does anyone now think that because the court decided segregation in 1896 was fine (Plessy v. Ferguson) that it should not have been overturned (by Brown v. Board of Education) in 1954?

The Senate filibuster is currently under scrutiny. It is argued that it should be changed – it’s just a Senate rule after all, it’s not even in the Constitution. Fair enough. But what if the court ruled for or against the right to grant the filibuster for the Senate somehow based on the Constitution? Wouldn’t that be wrong? And so it is with Roe. That ruling is now an unfortunate example of both: an expansive judgment and a longstanding improper precedent. Regardless of whether you agree with the ability of a woman to obtain an abortion, you will not find anything related to abortion in the Constitution. So the 1973 court manufactured one. The Roe opinion is based on the constitutional right to privacy found nowhere in the Constitution – even if one assumes that a “right to privacy” somehow includes abortion.

Unfortunately, the expansive view has been the dominant one since the Warren Court of the 1950s and Roe is certainly one of the most expansive rulings ever made by the court. Reading the ruling is telling – trying to make sense of the majority’s long and twisted use of contrived logic is like a tongue twister – all to get to the desired policy result: making a new “right” to abortion the law of the land. To me, this is governmental corruption. If the Supreme Court said I had the constitutional right to take a pile of cash from my neighbor’s house, I might like that ruling – but it wouldn’t be constitutional. And that’s not to overlook that a victorious expansive view in a case would not be celebrated (and opposition forgotten) by certain politicians/groups who claim anti-expansiveness philosophy. That would also be wrong.

As a nation, we can change the Constitution when we don’t like it. We can pass a constitutional amendment, as provided for in the constitutional process (there are currently 27 amendments – showing it can be done), that could legalize any kind of abortion at any time across the nation. But doing so by assuming governmental powers that are not granted is not legally or morally right. The power to make law under the Constitution, is vested in the legislative branch. Expansive court rulings, as well as expansive executive orders, violate this structure. THE PEOPLE (through elected representation) decide the law under our Constitution. The Constitution underpins our nation. It was voted on and accepted and allows changes – it is not up to a few governmental people – of any stature – to ignore it. There are plenty of laws that I assume many of us don’t like, but when the majority of people rule for or against it (under our system), we must respect the outcome. Many people don’t like Roe and have worked against it with attempts at restricting it with laws, etc. (perfectly legitimate under our system) but the ruling has been observed.

In the case of Roe, were it actually overturned (which is not a question before the court), it would mean that the people of each state can decide which abortion law they want or don’t want – just like most other laws. The Supreme Court was established to put limits on the power of the other branches to make and execute laws that go beyond what is granted in the Constitution. There is no law in Connecticut outlawing abortion. Connecticut wouldn’t even have to pass a law to allow abortion – it is not illegal, although rest assured, various politicians would seize the opportunity to pander for votes by passing one legalizing it formally. Just as Sen. Richard Blumenthal and other Roe advocates rallied last Friday around the Mississippi case (Dobbs v. Jackson Women’s Health Organization) currently before the Supreme Court to hyperbolize that the court is unlikely to ever say we are overturning Roe v. Wade, but make no mistake, if it upholds the Mississippi ban on abortions after 15 weeks, it has overturned Roe v. Wade.” It matters not that (according to Time magazine at least): “Legal experts largely agree that the court will more likely avoid explicitly overturning Roe.”

But under Roe, the 1973 ruling disallows restrictions on “abortion before fetal viability, typically around 24 weeks into pregnancy,” which of course is 2/3 of a typical nine-month pregnancy. The Mississippi law in question lowers that threshold to 15 weeks which is justified by the detection of a fetal heartbeat. Nine weeks (37.5% less time) is a significant reduction, but 15 weeks is still almost four months, or 41.7%, of the length of pregnancy to have a legal abortion under the Mississippi law. My point is not that that time frame is good or bad but that it hardly overturns Roe. Not only that, but from an “expansive” legal viewpoint, the court in 1973 heavily based its decision and discussion around the length of time to achieve fetal viability (a reasonable approach if one is intent on making abortion a constitutional right). A justice in 1973 could certainly not foresee, goes the expansive thinking, the medical advances that would take place after 1973 that would allow a baby (not a fetus) to be born and survive at 17 weeks in 2021 in Mississippi’s neighboring state Alabama (although admittedly it was a world record).

The advocates of “choice” would have you believe that abortion is a women’s rights issue not subject to alteration. But a majority of the public does not agree – fully anyway. A Gallup poll of abortion support since 1975 shows that women and men’s opinions have naturally fluctuated over that time, but in 2021, only 36% of women think abortion should be legal under any circumstance, and less than half (45%) believe it should be legal – but only under certain circumstances. Of course, polls are notorious for asking questions in a way that can be misconstrued by the respondent and I have seen polls that show larger numbers of support for abortion. I chose Gallup because at least one bias check organization considered it one of the least biased polling firms.

It will be interesting to see how a judge like Amy Coney Barrett, who staunchly supported precedent in her appearances, writings, and at her Senate confirmation hearing in 2021, squares that with what she must consider to be wrong: abortion. I observed last year that she would be unlikely to support overturning Roe given her belief in precedent but that a support of restrictions seems like the middle ground for her. That still seems to be true. The bigger question is whether a case actually challenging Roe comes before her and the rest of the court and whether precedent or constitutional theory wins.

The bottom line is that the Mississippi case before the court (or a potential case overturning Roe) will not impact Connecticut as advocates and politicians would have you believe. To reasonable, non-partisan people, abortion is certainly one of, and perhaps, the most difficult public policy question still under debate. The beginning of life is not clear. Certainly, the fertilization of an egg is a clear starting point, but it is challenging (leaving religious views aside) to reasonably consider a just-fertilized egg “a human life.” And of course, the fact that this egg/human life exists in another’s body just adds to the difficulty.

The 1973 court struggled with this concept as many of us continue to do so today. It is unfortunate that a very reasonable concern and debate about what constitutes a human life and deserves protection continues to be one of the most politicized and polarized issues since the 1970s.

Alan Calandro

Alan Calandro is a life-long unaffiliated voter and former director of the legislature’s nonpartisan Office of Fiscal Analysis.

The views, opinions, positions, or strategies expressed by the author are theirs alone, and do not necessarily reflect the views, opinions, or positions of or any of the author's other employers.