This week, a federal district court judge began listening to testimony in regard to a lawsuit brought by various abortion clinics in Tennessee against a state law that requires a 48-hour waiting period between a woman’s first appointment with an abortionist and the abortion procedure. What is taking place in that courtroom explains why the U.S. Supreme Court’s decisions in Roe v. Wade and Casey v. Planned Parenthood have not been overturned in 46 years and why the abortion legislation considered by the state Senate’s Judiciary Committee in August was so important.

To refresh your memory, the testimony before the Judiciary Committee related to a version of SB 1236 that had been amended to prohibit physicians from performing abortions, except to save the life of the mother, once the presence of human life is detected.

The legislation obviously “attacks” Roe v. Wade, but it does so by grounding the authority of the state to enact the prohibition in the Ninth Amendment, thereby pitting the powers reserved to the people, i.e., the people of a state through their elected representatives to declare and secure the “other rights” referenced in the Ninth Amendment, against the Supreme Court’s 14th Amendment jurisprudence.

The Suggested Alternative to Directly Attacking Roe/Casey

Two attorneys representing pro-life organizations opposed that approach. Their testimony was that legislation should not attack the foundations of the legal analysis employed in Roe v. Wade and, thereby, its subsequent decision in Planned Parenthood v. Casey. Rather, they said the proper approach was to enact legislation that would clearly put a “burden” on abortion and then argue that it did not create the “undue burden” that is prohibited by the opinion in Casey.

The argument was that, in defending those kinds of laws, the U.S. Supreme Court would eventually decide either it was tired of having to decide or making the lower courts decide whether a law is or is not an “undue burden” on women seeking an abortion.

Of course, that could happen, but the obstacle to that happening was made clear in the trial this week.

The Criteria for Evaluating the Suggested Alternative

To appreciate the obstacle created by this approach to getting Roe/Casey overruled, here are a few things you need to know about the litigation process:

1. Courts try and decide the controversy that is set before them by the parties.
2. The purpose of the complaint and answers and various pre-trial motions by the parties is to whittle the case down to what is really at issue—to get it focused on what controversy must really be decided.
3. Issues not put before the Court are usually not decided, though there are some exceptions to the general rule.
4. If the judgment of the trial court is appealed, the appeals court will generally only consider alleged errors made in regard to the issues raised to the trial court. In other words, a party can’t raise issues on an appeal that the trial court was not asked to rule on.

Applying These Criteria to the Current Trial

Armed with that information, read this from the opening paragraph to the “Conclusion” found in the State’s trial brief relative to the 48-hour waiting period law:

Both the Supreme Court and this Circuit have made it clear that waiting period laws will be upheld so long as they do not unduly burden a woman’s right to terminate her pregnancy. Casey, 505 U.S. 872–74; see also Taft, 468 F.3d at 372–74. Tennessee’s law passes this test. (emphasis added)

The trial court is not going to rule on whether the U.S. Supreme Court’s abortion jurisprudence was wrong when the state concedes a willingness to accept Casey as the applicable law!

The issue of whether Roe and Casey were correctly decided isn’t even before the trial court according to the very party being attacked for its law—the state.

This also makes it very unlikely the U.S. Court of Appeals for the 6th Circuit is going to rule on whether the Supreme Court’s abortion jurisprudence is wrong when the state didn’t even challenge its correctness in front of the trial court.

For 46 years, states have not directly attacked Roe and Casey until Alabama passed its abortion ban law this spring; however, it did so only on the basis of the state’s constitutional amendment regarding abortion that was modeled after Tennessee’s. Alabama did not assert a basis for its law in the U.S. Constitution like has been done with the amended bill before the TN Senate Judiciary Committee.

Where the Journey to Roe’s Reversal Needs to Begin

So, while the lawyers opposed to that amended bill are correct that the U.S. Supreme Court can always decide to overrule Roe and Casey, raising the issue at the beginning—in the trial court—might be a good place to start.

But that is not happening in federal court this week.

Until states like Tennessee at least argue that Roe and Casey were wrongly decided, pro-lifers might not want to hold their breath that they will be overruled. It’s hard to win on an issue that you give up on at the start.

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David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006.