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Abortion

Complicit Bias and the Supreme Court

The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles are enough.

— Justice Oliver Wendell Holmes (Buck v. Bell, 274 U.S. 200, 207 (1927)).

Complicit: involved with others in an illegal activity or wrongdoing.

— Oxford American Dictionary (3d ed. 2015).

Bias: prejudice in favor of or against one thing, person, or group compared with another, usually in a way considered to be unfair.

— Oxford American Dictionary (3d ed. 2015).

 

Complicit Bias:

(1) cognitive awareness of a past or present harm and conscious refusal to intercede with knowledge that the impact will prejudice another or others.

(2) to feel or show an inclination of protection toward an individual or group based on relationship, affinity, or group characteristics.

(3) further a harm through silence and inaction.

Introduction

Even as judges and courts serve as important safeguards and guardians against state and federal enforcement of unjust, harmful, and unconstitutional laws and discriminatory policies, they too may be fallible, weak in judgement and character, personally and professionally indifferent to systemic injustice, or corruptible.1×1. Jerry Kang et al., Implicit Bias in the Courtroom, 59 UCLA L. Rev. 1124, 1173 (2012); see also Jodi Kantor & Jo Becker, Former Anti-abortion Leader Alleges Another Supreme Court Breach, N.Y. Times (Nov. 19, 2022), https://www.nytimes.com/2022/11/19/us/supreme-court-leak-abortion-roe-wade.html [https://perma.cc/5C32-W6VS] (“In interviews and thousands of emails and other records . . . shared with The Times,” Reverend Rob Schenk, a former antiabortion leader, provided details regarding how he worked to “exploit the [Supreme Court’s] permeability,” gaining access to Supreme Court Justices “amenable to outreach” through “faith, through favors traded with gatekeepers and through wealthy donors to his organization, abortion opponents whom he called ‘stealth missionaries.’”); Mark W. Bennett, Unraveling the Gordian Knot of Implicit Bias in Jury Selection: The Problems of Judge-Dominated Voir Dire, The Failed Promise of Batson, and Proposed Solutions, 4 Harv. L. & Pol’y Rev. 149, 150 (2010); Jeffrey J. Rachlinski et al., Does Unconscious Racial Bias Affect Trial Judges?, 84 Notre Dame L. Rev. 1195, 1210 (2009). As history demonstrates, judges may be complicit in perpetuating harms or furthering discrimination against vulnerable people, including racial minorities, women, individuals with disabilities, and people who identify as LGBTQ.2×2. See, e.g., State v. Mann, 13 N.C. (2 Dev.) 263, 267 (1829) (involving an enslaved Black woman who was not named in the legal dispute) (Ruffin, J., a slave owner himself) (ruling that the owner, leaser, or renter of an enslaved person is not liable for assault, battery, or even murder, in a case involving a slaver shooting and severely maiming a Black woman for her obstinance); Minor v. Happersett, 53 Mo. 58, 64–65 (1873) (finding that although the Constitution granted women citizenship, it did not provide them a right to vote); Buck v. Bell, 274 U.S. 200, 205, 207–08 (1927) (affirming the constitutionality of forced sterilization performed on an indigent, “feeble-minded,” female victim of rape); Ward v. Ward, 742 So. 2d 250, 251–52 (Fla. Dist. Ct. App. 1996) (affirming the grant of custody to a father who, although found guilty of murdering his first wife, successfully argued that his recently divorced wife was lesbian and thus unfit to rear their daughter); see also State v. Paolella, 554 A.2d 702, 708 (Conn. 1989) (holding that Conn. Gen. Stat. Ann. §§ 53a-70(a), 53a-70a(a) (West 1989), exonerate husbands who rape their wives). In other words, judges may possess cognitive awareness of a past or present harm against a vulnerable group and yet refuse to intervene to avert the continuance of harm or discrimination.

Judges may also refuse to acknowledge glaring injustices against vulnerable groups, denying appropriate relief related to past, ongoing, or future harms.3×3. See, e.g., Bowers v. Hardwick, 478 U.S. 186, 194 (1986) (5–4 decision) (“Against [a background in which many states have criminalized sodomy and still do], to claim that a right to engage in such conduct is ‘deeply rooted in this Nation’s history and tradition’ or ‘implicit in the concept of ordered liberty’ is, at best, facetious.”); McCleskey v. Kemp, 481 U.S. 279, 319 (1987) (5–4 decision) (holding that a death sentence was constitutionally imposed, despite robust empirical evidence that racial bias dramatically heightened the likelihood of sentencing the defendant to death if the perpetrator was Black and the victim white). Judges may inflict further harm through this purposeful inaction or silence. Ironically, legal scholarship generally sidesteps directly naming and developing theory to address these concerns.

As noted by Professor Jerry Kang: “[T]here is no inherent reason to think that judges are immune from implicit biases.”4×4. Kang et al., supra note 1, at 1146. Highly visible United States Supreme Court cases, such as Dred Scott v. Sandford,5×5. 60 U.S. (19 How.) 393 (1857) (involving an enslaved party). Buck v. Bell,6×6. 274 U.S. 200. Korematsu v. United States,7×7. 323 U.S. 214 (1944). Plessy v. Ferguson,8×8. 163 U.S. 537 (1896). and Bowers v. Hardwick,9×9. 478 U.S. 186 (1986). among others, clarify this point. Judges are not immune to complicit, implicit, or explicit biases in the adjudicative process. The judicial process may be corrupted by partisanship and affected by external political or associational pressures and influence.10×10. David Russell, Politicization in the Federal Judiciary and Its Effect on the Federal Judicial Function, N.Y.U. J. Legis. & Pub. Pol’y Quorum 21, 26 (2017). Even if the rule of law operates as a safety valve to protect rights, at times it too is leaky and unreliable. Moreover, while the scholarship on implicit and explicit biases remains important, too little has been expressed about judges’ complicit biases. These biases may incline judges toward advancing particular principles or causes based on their religious, political, or other beliefs and affiliations. This may happen even if the result is or appears outcome determinative, infringes on established rights, or perpetuates discrimination.

This Response takes up those concerns, building on the theory of complicit bias. As used here, complicit bias is comprised of three potentially overlapping elements. First, complicit bias can be shown where the actor is aware of a past, present, or future harm and does not intercede, with apparent knowledge that the impact will prejudice another. Second, the perpetrator shows an inclination to protect an individual or group based on relationship, affinity, or group characteristics. Third, the individual or institution furthers the harm through silence and inaction. The essay analyzes complicit bias by addressing the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization.11×11. 142 S. Ct. 2228 (2022).

As Professor Khiara Bridges observes in this year’s Foreword,12×12. Khiara M. Bridges, The Supreme Court, 2021 Term — Foreword: Race in the Roberts Court, 136 Harv. L. Rev. 23 (2022). in the Supreme Court’s 2021 Term, the valves broke: the Supreme Court’s conservative majority declared stare decisis inconsequential and incompatible with its evolving and conflicting originalist frameworks.13×13. Id. at 53. Notably inconsistent, and lacking uniformity or coherence among themselves, the Court’s conservative originalists extended their solicitude to states hungry to dismantle reproductive freedom.14×14. See Jesus Jiménez & Nicholas Bogel-Burroughs, What Are Abortion Trigger Laws and Which States Have Them, N.Y. Times (June 24, 2022), https://www.nytimes.com/2022/06/25/us/trigger-laws-abortion-states-roe.html [https://perma.cc/G634-8TYV]. Justice Thomas warned that his aim included all privacy protections save interracial marriage,15×15. See Dobbs, 142 S. Ct. at 2301 (Thomas, J., concurring). a feature of the Court’s protection that safeguards marriages relevant to his personal life.16×16. See Kelsey Reichmann, Thomas Didn’t Mention Interracial Marriage, And that’s Worth Talking About, Courthouse News Serv. (July 13, 2022), https://www.courthousenews.com/thomas-didnt-mention-interracial-marriage-and-thats-worth-talking-about [https://perma.cc/4AEM-UKKD].

According to Justice Thomas, “‘substantive due process’ is an oxymoron that ‘lack[s] any basis in the Constitution,’” and as such, “in future cases [the Court] should reconsider all of [its] substantive due process precedents, including Griswold, Lawrence, and Obergefell.”17×17. Dobbs, 142 S. Ct. at 2301 (Thomas, J., concurring) (quoting Johnson v. United States, 135 S. Ct. 2551, 2564 (2015) (Thomas, J., concurring in the judgment)) (citing Griswold v. Connecticut, 381 U.S. 479 (1965); Lawrence v. Texas, 539 U.S. 558 (2003); Obergefell v. Hodges, 135 S. Ct. 2584 (2015)). Citing his concurrences as legal authority, Justice Thomas claimed that “any substantive due process decision is ‘demonstrably erroneous.’”18×18. Id. (quoting Ramos v. Louisiana, 140 S. Ct. 1390, 1424 (2020) (Thomas, J., concurring in the judgment)). He urged that the Court has “a duty to ‘correct the error’” established in more than 150 years of precedent.19×19. Id. (quoting Gamble v. United States, 139 S. Ct. 1960, 1984–85 (2019) (Thomas, J., concurring)). Despite tepid assurances from Justice Alito’s majority opinion and Justice Kavanaugh’s concurrence that other fundamental privacy protections such as contraception access and marriage equality remain protected,20×20. See id. at 2242–43 (majority opinion); id. at 2309 (Kavanaugh, J., concurring). those guardrails are un-reliable at best. Unfortunately, the risks for women’s health are not insignificant. Nor were they unforeseeable.

In her gripping Foreword, Bridges provides carefully argued insights. She reasons that the Court’s willingness to see race discrimination is cabined to “objective” or “common sense” race discrimination cases and outcomes.21×21. Bridges, supra note 12, at 24. As she explains it, the laws that undergird the “objective” or “common sense” cases of racism represent “‘old-school’ racism”22×22. Id. at 32. or artifacts from “the bad old days of the nation’s formal racial caste system.”23×23. Id. at 28. This “pre–Civil Rights Era racism”24×24. Id. at 27. involved objective sadism, overt cruelties, and insidious violations of the legal order by self-avowed white supremacists and nationalists unabashed in decrying school integration, opposing interracial marriage, and supporting “separate but equal” laws.25×25. See id. at 24–34; David Pilgrim, What Was Jim Crow, Ferris State Univ.: Jim Crow Museum (2012), https://www.ferris.edu/HTMLS/news/jimcrow/what.htm [https://perma.cc/6XVW-6XJE]. Bridges argues that this old-school archetype of racism problematically serves as the standard for the Roberts Court’s interpretation or methodology for adjudicating contemporary claims of racial discrimination, which no longer resemble the types of overt racial discrimination inflicted by Commissioner Theophilus Eugene “Bull” Connor, Governor Orval Faubus, or Governor George Wallace.26×26. See Bridges, supra note 12, at 24–34; Equal Just. Initiative, “Segregation Forever”: Leaders of White Supremacy, in Segregation in America 70, 76, 78–79 (2018). Worryingly, according to Bridges, if the old racism is the standard for understanding contemporary racism, then remedia-ble racism will be confined to matters and frameworks of the old: “eugenics[,] . . . genocide[,] . . . racists disarming formerly enslaved black people to render them helpless and easily killed,” or similarly “a bigoted prosecutor trying to convict an innocent black man of murder.”27×27. Bridges, supra note 12, at 24.

To expound upon Bridges’s theory, in the Roberts Court, remediable racism takes the shape of “an extraordinary problem” under “exceptional conditions.”28×28. Shelby County v. Holder, 570 U.S. 529, 534, 557 (2013). Yet this is relative. While Bridges very likely views the alarmingly high rates of Black maternal mortality and morbidity as an “extraordinary problem” occurring under “exceptional conditions,”29×29. See generally Khiara M. Bridges, Racial Disparities in Maternal Mortality, 95 N.Y.U. L. Rev. 1229, 1279 n.228 (2020). at least five Justices ostensibly do not.30×30. Compare sources cited infra notes 277–79 and accompanying text, with Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2240, 2243 (2022). Given this, what constitutes “extraordinary” and “exceptional” in the Roberts Court?

In the context of voting rights, the Roberts Court has recognized “literacy and knowledge tests, good moral character requirements, the need for vouchers from registered voters, and the like” as fitting into a remediable form of racial discrimination.31×31. Shelby County, 570 U.S. at 537, 545–46. Pre–Voting Rights Act32×32. Voting Rights Act of 1965, 52 U.S.C. §§ 10101, 10301–10702. physical abuses in the form of aggressive canines and law enforcement brandishing and using weapons against potential Black voters qualify as meeting the threshold of “extraordinary” and “exceptional.”33×33. See Shelby County, 570 U.S. at 544, 549; Congress and the Voting Rights Act of 1965, Nat’l Archives, https://www.archives.gov/legislative/features/voting-rights-1965 [https://perma.cc/8QWU-M2ZF] (“On March 7, 1965, peaceful voting rights protesters in Selma, Alabama[,] were violently attacked by Alabama state police. News cameras filmed the violence in what became known as ‘Bloody Sunday.’ Many Americans and members of Congress began to wonder if existing civil rights laws would ever be properly enforced by the local authorities.”); Birmingham, Alabama, Protests, Libr. of Cong., https://www.loc.gov/exhibits/civil-rights-act/multimedia/birmingham-protests.html [https://perma.cc/PW3A-WNGA]. At the same time, continued voter suppression — in the form of systemic and persistent partisan gerrymandering,34×34. See Alex Tausanovitch, The Impact of Partisan Gerrymandering, Ctr. for Am. Progress (Oct. 1, 2019), https://www.americanprogress.org/article/impact-partisan-gerrymandering [https://perma.cc/G8F2-B83T]; Julia Kirschenbaum & Michael Li, Gerrymandering Explained, Brennan Ctr. for Just. (Aug. 12, 2021), https://www.brennancenter.org/our-work/research-reports/gerrymandering-explained [https://perma.cc/YA7B-3QYR]. racial gerry-mandering,35×35. See LaQuita Howard, Racial Gerrymandering and the 2021–2022 Redistricting Process, League of Women Voters (Mar. 31, 2022), https://www.lwv.org/blog/racial-gerrymandering-and-2021-2022-redistricting-process [https://perma.cc/E9K7-9F9B]. mandated payment of fines and fees as a condition to vote,36×36. See Malia Brink, Fines, Fees, and the Right to Vote, Am. Bar Ass’n (Feb. 9, 2020), https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/voting-rights/fines–fees–and-the-right-to-vote [https://perma.cc/T5HJ-ABUB]. deceptive robocalls,37×37. See, e.g., Tony Romm & Isaac Stanley-Becker, Suspicious Robocall Campaign Warning People to “Stay Home” Spooks Voters Nationwide, Wash. Post (Nov. 3, 2020, 5:48 PM), https://www.washingtonpost.com/technology/2020/11/03/robocall-election-day [https://perma.cc/2MHG-9FV4]. barriers to assistance,38×38. See Fabiola Cineas, Why It’s Now Illegal for Some Voters with Disabilities to Cast a Ballot, Vox (Apr. 28, 2022, 2:10 PM), https://www.vox.com/23043567/voters-with-disabilities-voting-barriers-restrictive-laws [https://perma.cc/AK5Q-PKP8]; Press Release, Ctr. for Am. Progress, Disabled Voters Still Face Systemic Barriers to Casting Ballots; CAP Report Urges Officials to Improve Access (July 8, 2021), https://www.americanprogress.org/press/release-disabled-voters-still-face-systemic-barriers-casting-ballots-cap-report-urges-officials-improve-access [https://perma.cc/28VL-WGDU]. voter intimidation,39×39. See, e.g., Neil Vigdor & Jon Hurdle, Election Officials Say Efforts to Intimidate Voters Are Widening, N.Y. Times (Nov. 3, 2022), https://www.nytimes.com/2022/11/03/us/politics/voting-intimidation-democracy.html [https://perma.cc/C6PA-7XZU]. strict voter identification laws, the broadscale and strategic closing of voter registration sites, ex-felon disenfranchisement laws, lack of early voting, and polling place relocations and reductions40×40. See Block the Vote: How Politicians Are Trying to Block Voters from the Ballot Box, ACLU (Aug. 18, 2021), https://wp.api.aclu.org/news/civil-liberties/block-the-vote-voter-suppression-in-2020 [https://perma.cc/5DV2-TCVH].  — apparently falls short. Seemingly, this is because contemporary discrimination may fall short of the pain still viscerally felt from “Bull” Connor’s unleashing of fire hoses, dogs, and law enforcement on Black women and men.41×41. Connor, Theophilus Eugene “Bull,” Stanford Univ.: Martin Luther King, Jr. Rsch. & Educ. Inst., https://kinginstitute.stanford.edu/encyclopedia/connor-theophilus-eugene-bull [https://perma.cc/54Z7-B5TZ].

In Shelby County v. Holder,42×42. 570 U.S. 529 (2013). the Court did not deny the existence of voter discrimination, but it was unwilling to acknowledge modern racism in voting laws.43×43. See id. at 536, 547–49, 551, 553–54. Notably, the Chief Justice in that majority opinion never used the term “racism” and barely referenced “racial discrimination” in a case where both were at the heart of the litigation before the Court.44×44. See generally id. Perhaps this is because the Roberts Court has latched on to the belief that “[o]ur country has changed.”45×45. Id. at 557. In other words, according to Bridges, “[t]he crux of the Roberts Court’s apparent racial common sense is that racism against people of color is what racism looked like during the pre–Civil Rights Era — in the bad old days.”46×46. Bridges, supra note 12, at 24.

This essay responds to Bridges’s compelling Foreword. In the Foreword, she makes several key claims. First, Bridges argues that the Roberts Court “stands willing to interpret various parts of the Constitution — the Second Amendment, the Sixth Amendment, and the Due Process Clause of the Fourteenth Amendment — in ways that are responsive to nonwhite people’s racial injuries when they are reminiscent of the pre–Civil Rights Era.”47×47. Id. at 30–31. As such, the Roberts Court, “among other things,” was willing to “save[] black people from a genocide that abortion providers were perpetrating, albeit unintentionally, through facially race-neutral laws that permit abortion.”48×48. Id. at 31. Or, as in New York State Rifle & Pistol Ass’n v. Bruen,49×49. 142 S. Ct. 2111 (2022). the Court was willing to strike down the “facially race-neutral licensing scheme at issue in the case in order to, among other things, be able to say that it saved black people from a racist disarmament that began at the end of Reconstruction.”50×50. Bridges, supra note 12, at 31. That is, when the Court fixates on anti-Black racism looking like Governor Wallace physically blocking Vivian Malone and James Hood from entering the University of Alabama in order to prevent their integration of the university,51×51. See Fifty Years Ago: The Stand in the Schoolhouse Door, NAACP Legal Def. Fund (June 11, 2013), https://www.naacpldf.org/press/fifty-years-ago-the-stand-in-the-schoolhouse-door [https://perma.cc/D2WW-8EJJ]. it sophomorically ignores racism’s adaptability and mutations. Like the virus that it is, racism produces variants, including some more infectious and perilous than others, often requiring new vaccines and remedies.

Second, Bridges argues the Court makes different demands of white litigants that claim racial discrimination than of nonwhites. She explains that “judicial responsiveness to white people’s ‘new’ racial injuries means that white people receive judicial and constitutional solicitude not afforded to nonwhite people.”52×52. Bridges, supra note 12, at 32. Where nonwhite people must show Jim Crow–type overt conduct to successfully seek remedies for race discrimination, white petitioners need not show odious stereotypes, stigmas embedded in law, or vile and violent enforcement carried out by the government or its agents against them.53×53. See id. As a result, she explains, “requiring nonwhite people’s racial injuries to have a similarity to past techniques of racial disenfranchisement allows the Court to implicitly declare that racism against people of color is a thing of the past; it permits the Court to deny the existence and persistence of structural racism.”54×54. Id. at 31.

Third, and most devastatingly, Bridges posits that “efforts to disrupt the systems and processes that have made it so that people of color are at the bottom of most measures of social well-being will not survive judicial review.”55×55. Id. at 32. Bridges is not new to studying the law’s negative externalities in the lives of poor, pregnant women. Across carefully researched books and copiously detailed law review articles, she time and again has urged centering the lives of Black and Brown women in discourse on reproductive health and rights and has argued for the use of a reproductive justice framework to analyze the law’s failure to show solicitude toward low-income women of color.56×56. See, e.g., Khiara Bridges, The Poverty of Privacy Rights (2017); Khiara Bridges, Reproducing Race: An Ethnography of Pregnancy as a Site of Racialization (2011); Bridges, supra note 29; Khiara Bridges, Race, Pregnancy, and the Opioid Epidemic: White Privilege and the Criminalization of Opioid Use During Pregnancy, 133 Harv. L. Rev. 772 (2020); Khiara Bridges, White Privilege and White Disadvantage, 105 Va. L. Rev. 449 (2019); Khiara Bridges, When Pregnancy Is an Injury: Rape, Law, and Culture, 65 Stan. L. Rev. 457 (2013). In her Foreword, Bridges expands on those intuitions and instincts to include a more generalizable critique and description of the Court’s review of racial discrimination, a particularly relevant endeavor given the Court’s recent Term. Accordingly, to Bridges, the Roberts Court shows its theory of racism, even while it claims to be “atheoretical” in its race jurisprudence.57×57. Bridges, supra note 12, at 27. Bridges marks this as “theory masquerading as no-theory” — a theory she describes as both “incomplete”58×58. Id. at 26. and “convenient.”59×59. Id. How then does one make sense of the Court’s methodology or theory of law? And is the Roberts Court unique in its masquerading? Is there a framework that might connect the Roberts Court to its predecessor Courts, which equally showed a lack of solicitude for the lives of women generally, and women of color particularly?

This essay characterizes the Court’s grievously wrong rulings in its 2021 Term abortion cases as manifestations of complicit bias. It takes seriously an overlooked — even unnamed — phenomenology involving third parties who do not act when harms occur, even when they could do so or arguably have a duty to do so. It argues that in cases involving sex, race, and gender discrimination, action or inaction by third parties, including by courts, may cause harm. Furthermore, that action or inaction may be linked to personal or professional interest in, affinity toward, loyalty to, benefit from, or relationship to the perpetrator, which may be state legislatures as well as individuals.

This essay offers a new conceptual framework, namely “complicit bias,” to address circumstances wherein people fail to act — even people presumably of goodwill. This distinct conceptual framework complements and expands the recognized theoretical frames of implicit bias and explicit bias. It suggests that those useful and important frames fail to capture an important third rail. Unlike those who engage in implicit bias (being cognitively unaware of prejudiced thoughts and behaviors),60×60. See Kang et al., supra note 1, at 1128–32 (2012) (providing a scientific overview of implicit bias). individuals who engage in complicit bias are cognitively aware of the specific prejudice, discrimination, and injustice at issue. However, unlike actors engaged in explicit bias, the complicitly biased may not be engaged in purposeful acts to discriminate or harm.61×61. See id. at 1129 (describing explicit bias as attitudes and stereotypes that are “consciously accessible through introspection and endorsed as appropriate by the person who possesses them”).   Rather, individuals or institutions that engage in complicit bias occupy a third category. They are those who fail to correct or acknowledge the discriminatory harms inflicted on vulnerable individuals despite awareness of the inappropriate, unethical, or illegal conduct.

This essay proceeds in three Parts. Part I briefly lays out the contours of complicit bias theory. Part II argues that complicit bias has been a pillar of American jurisprudence by tracing the longer arc of complicit bias in judicial decisionmaking. Part III turns to the real-world implications and impacts of judicial complicit bias. It offers an overview of the dangerous but predictable aftermath of the Supreme Court’s decision in Dobbs. It asks: Why, with the unsurprising likelihood of pregnancy-related injuries and harms in the wake of abortions bans, did the Court accord such solicitude to Mississippi? The essay then concludes.

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* Chancellor’s Professor of Law, University of California, Irvine School of Law; Founding Director of the Center for Biotechnology and Global Health Policy at the University of California, Irvine School of Law. I am grateful to the Harvard Law Review editors for their ex-emplary editing and thoughtful engagement with this work. I also wish to express apprecia-tion to the faculties at Georgetown University Law Center, the University of Pennsylvania Carey Law School, the University of California, Irvine School of Law, and the University of Southern California Law School, where versions of this Response were presented. © 2022 Michele Goodwin.