SHAPING CONSTITUTIONAL VALUES: ELECTED GOVERNMENT, THE SUPREME COURT, AND THE ABORTION DEBATE, by Neal Devins. Baltimore: Johns Hopkins University Press, 1996, 193 pp. $45.00 Cloth. $14.95 Paper. ISBN: 0-8018-5284-6 Cloth; 0-8018-5285-4 Paper

Reviewed by Susan Gluck Mezey, Department of Political Science, Loyola University Chicago.
 

Neal Devins has written a brief, engaging book using the abortion debate as a case study to show the interplay among the relevant actors in the U.S. policy making process: the Supreme Court, Congress, the executive branch, and state legislatures. In assessing the role of each branch in the abortion debate, Devins, a professor of law and lecturer in government at the College of William and Mary, concludes that Supreme Court decision making "has set the tone," that is, serves as the "benchmark" for abortion policy, but it does not speak alone, and does not always speak decisively, on the subject.

Seeking to generalize the findings of his case study, Devins begins his analysis by showing that abortion is not unique in being shaped by constitutional dialogue among the branches of government. Presenting a series of mini case studies of desegregation policy, minimum wage laws, child labor laws, and the legislative veto, he demonstrates that the courts do not speak with finality on a wide range of subjects. Elected officials are engaged in lawmaking in most areas in which the Court plays a role in the policy making process.

Devins examines the political and legal developments of this issue that has occupied so much of the time and energy of elected and nonelected public officials at all levels of government. Although the book adds little to our knowledge of abortion policy, that is, it does not contain much that is not already known to people moderately familiar with the topic, that is not its purpose. Its intention is to contribute to the perennial debate over the role of the Supreme Court in the U.S. political system. He seeks to situate the Supreme Court within the American constitutional system by addressing the question of whether it is a coequal branch with the executive and legislative branches, or, as many argue, the first among equals. He believes it is healthy for our democracy when elected government officials challenge the Court -- as long as the challenges stay within bounds. It is not clear though, nor does he tell us, precisely what those bounds are.

He analyzes ROE V. WADE within the context of the debate over judicial supremacy. He rejects Justice Blackmun's belief that the Supreme Court took abortion decision making out of the political fray by deciding ROE. Similarly, he dismisses Justice Ginsburg's claim that ROE prolonged political divisiveness by, among other things, preempting state legislative reform policies that were being enacted even as the Court was deciding ROE. Devins takes issue with the premise behind these views: for good or bad, ROE did not remove abortion from the political debate, nor did it contribute to political unrest. Instead, in his view, it "ignited a constructive constitutional dialogue" (p. 5) between the courts and elected government officials. And because participants in the abortion debate typically embrace absolutist positions that are politically unworkable, the dialogue is beneficial because it "offer[s] a mechanism to forge middle-ground solutions in a dynamic environment that does not shut out either side of the debate" (p. 6).

Depicting the dialogue as a seesawing of pro-choice and antiabortion policies in the 25 years since ROE, he devotes a chapter to each of the policy-making bodies at the state and federal level. He argues that the abortion issue illustrates the principle that constitutional policy making is not the exclusive province of the courts, even the Supreme Court, and indeed, that constitutional values are shaped by elected government officials reacting to and provoking court decisions. Moreover, he thinks that democracy benefits from this interaction among the branches of government, especially when such a divisive issue as abortion arises.

Reacting to ROE, elected officials at the state and federal level largely focused on public funding for poor women and consent/notification requirements for minors. By confining themselves to these areas, elected government officials avoided direct challenges to the authority of the Court, and, at the same time, opened new areas of abortion policy making by legislating in the interstices of Supreme Court decision making.

Although frequently catering to an antiabortion constituency by imposing funding restrictions through the Hyde Amendment, Congress ultimately rejected the more extreme policies of a constitutional amendment proclaiming the fetus's right to life, a human life statute reversing the Court's constitutional interpretation, or placing abortion outside the Court's jurisdiction.

Similarly, because of ROE's pro-choice stance, state legislators allowed themselves the luxury of indulging their antiabortion constituents for almost 20 years. Like Congress, for the most part, they also avoided engaging in frontal assaults on the courts. Then, when invited by the plurality opinion in WEBSTER, abortion-rights' opponents at the state level attempted to enact laws inconsistent with ROE, hoping to force the Court to reconsider and overrule ROE. But after CASEY, Devins notes, most state legislatures have been relatively quiescent and have not pursued the restrictive policies that the pro-choice side feared they would.

Looking at presidential reactions to ROE before Ronald Reagan, most presidents and presidential candidates proclaimed themselves antiabortion but took few real steps to implement their views. Devins notes that Carter waffled on the issue and lost support from both sides, a lesson that his successors learned well. Reagan's appointments of lower federal court and Supreme Court judges made him a formidable ally of the antiabortion movement, with Bush solidifying these victories. He explains the importance of Bush's role, one that was perhaps even more crucial to the antiabortion side than Ronald Reagan's was. Largely because of WEBSTER and the resurgence of pro-choice activists, Congress attempted to provide a counterweight to the executive and judicial antiabortion posture of the late 1980s by liberalizing abortion funding provisions. Bush's threatened and actual vetoes thwarted these attempts, given Congress' inability to override. Clinton largely reversed the moves of his predecessors, placing his imprimatur on the courts, especially at the Supreme Court level. After CASEY, however, which placed constraints on access to abortion while also reaffirming ROE, he notes that there was little incentive for the executive branch to take a strong position on either side.

Based on this analysis of interbranch activity on the abortion issue, Devins rejects the three current models of judicial decision making: the judicial supremacy model in which the Court has the final say in constitutional interpretation; the majoritarian model in which the Court never strays far from prevailing majority opinion; and the ineffectual model that holds that the Court largely does not matter, or at least does not matter very much. He insists that courts matter; indeed, that "they matter a lot" (p. 153). But, he emphasizes, their influence does not hinge on the fact that they utter the final word on a subject. He offers instead an interactive model in which constitutional decision making is an "ongoing dynamic fueled by both judicial and nonjudicial forces" (p. 150).

While interesting and well worth reading, there is an aspect of the book that I find disquieting. Devins's value-free approach to rights seems inappropriate. He states that sometimes rights are expanded and sometimes they are not, but whatever the outcome, the constitutional dialogue is welcome. In his eagerness to see the dialogue at work, however, he seems rather cavalier about the diminution of rights that may result from it. Interplay among the branches is held out as an unassailable virtue and beneficial for democracy. It is somewhat difficult to believe, however, that such a now-you-see-it, now-you-don't treatment of rights does not breed a cynicism that is ultimately destructive of democracy. Whether the issue is women's reproductive rights or racial discrimination, one might argue that once rights are in place, a constitutional dialogue among the branches of government in which the rights are ultimately cut back is not desirable in a democratic system.

Overall, this is a very accessible book that students will find interesting. It would make a nice addition to a class on judicial politics, presenting a snapshot of the way in which law and politics intersect in the U.S. political system, as well as providing an overview of abortion policy making over the last several decades.

ROE V. WADE, 410 U.S. 113 (1973).

WEBSTER V. REPRODUCTIVE HEALTH SERVICES, 492 U.S. 4090 (1989).

PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA V. CASEY, 505 U.S. 833 (1992).