Chief Justice Earl Warren’s judicial method in Brown related to the current abortion case

The judicial methodology used by Chief Justice Earl Warren in Brown v. Board of Education (1954) on school segregation by race, one of the most celebrated cases of the 20th century, can teach us an approach to Dobbs v. Jackson Women’s Health Organization, the current case on a woman’s right to an abortion. I shall here deal with textual analysis, precedent, intent of the drafters of the 14th Amendment and policy-making by our Supreme Court.

The question in Dobbs is whether the state can determine the timeline after which a state can ban abortion, but it doesn’t have to so ban it. It seems the only entity in this drama without an independent legal interest, or an attorney, is the fetus. The real question, I believe, should be whether the fetus is a “person” under the 14th Amendment with a legal interest, and an attorney, of his or her own.

Let’s look at the text of the 14th Amendment: “… nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” If the fetus were determined to be a “person” here, the fetus would be protected by constitutional law, as are the other parties. Due process would give the fetus the right to life, unless there were a compelling interest to terminate it, such as the life or health of the mother. Equal protection would match the fetus’ life interest against the woman’s interest in convenience; the fetus would win in that balance. The Supreme Court in Roe v. Wade (1973) wrote: “If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment.”

What about precedent, the workhorse of judicial methodology? The point of Brown v. Board was that the key precedent was overruled. The precedent was Plessy v. Ferguson (1896). Plessy had held that separate railroad cars for the races were okay: “separate but equal.” It also held that separate facilities did not warrant feelings of inferiority. The Brown case rejected both points. Chief Justice Warren wrote that separation created “… a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”

The precedents that were cited emphasized these “intangible considerations.” The court relied on social-psychological studies saying Plessy was wrong regarding the self-esteem issue. The court relied on current social science instead of precedent. It looked to the effect on individuals of segregation. It was making policy.

Regarding intent of the drafters of the 14th Amendment, neither Brown nor Roe were based on it. In Brown, the court concluded that, “… although these sources cast some light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive … (intent) cannot be determined with any degree of certainty.” Intent regarding the fetus is no doubt equally unclear, probably non-existent. We have to have a new foundation.

Ultimately, the famous Brown case did not rely on text, precedent, intent of the drafters or common law. The court made policy on its own. Policymaking is a legitimate role for courts regarding constitutional individual rights, as opposed to economic or foreign policy. Indeed, individual rights should not be determined by popular majorities or legislatures. Rights protect the unpopular as well as the popular. It is not a political question.

As Warren wrote in Brown: “… we cannot turn the clock back to 1868 when the Amendment was adopted….” Regarding the rights of the fetus in Dobbs, a decision must be made in light of today’s technology and opportunity. Should the fetus be recognized as a “person” under the 14th Amendment? A decision should be made one way or the other. Let our Supreme Court have the courage to make it, and not to be content to decide only the power of states.

James W. Pfister, J.D. University of Toledo, Ph.D. University of Michigan (political science), retired after 46 years in the Political Science Department at Eastern Michigan University. He lives at Devils Lake and can be reached at jpfister@emich.edu.