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“Somewhere in the constitution”: Reproductive Freedom

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Reactions to Dobbs v. Jackson Women’s Health are wide ranging, and many seem to reflect emotion and use charged language. I do not mean to downplay the tossing out of an established constitutional right, but a cooling off period may allow for more reasoned discussion. While in the past courts disagreed about where in the constitution the right to abortion should be found (to me, obviously the Fourteenth Amendment Due Process Clause), or why it is a fundamental right, there is strong support for abortion rights. Separately, among those wanting the rights, it is not clear how much it matters practically whether the right stems from federal law, state or state constitution, or the US Constitution, or is affirmed by a court as long as the right exists. For many people, and perhaps depending on what state one lives in, the concern is either the principle of the thing or the practical ability to exercise the right.

Autonomy and Liberty

The many somewheres in the constitution were resolved in Casey. The Fourteenth Amendment protects people from intrusive government by ensuring liberty. Substantive due process links procedure to underlying rights and imposes on states to ensure personal rights. In a simple cursory part of the Dobbs opinion, the justices untether abortion from autonomy and liberty. Without the undue burden test of Casey or the trimester scheme of Roe v. Wade, the Court distinguishes abortion from liberty and autonomy altogether. In doing so, it designates the abortion right new rather than steeped in liberty, which is our longest-standing right, and the basis of our democracy. It throws its hands up, asking how a new right possibly could have arisen, one that was not steeped in history. Then, determining no such right exists, the Court applies a mere rational basis test when it reviews the Mississippi law.

Deeply rooted in history and tradition

The case turned on whether support for abortion was “deeply rooted in history and tradition.” Were all rights that we consider fundamental deeply rooted in history or tradition at the time they became recognized rights? No. The Court notes that Due Process applies to the first eight amendments, meaning that states must recognize, respect, and not violate them. The Court also notes that rights that are not mentioned in the Constitution may also be fundamental. As fundamental rights they may be worthy of Due Process protection through the Fourteenth Amendment. The Court applies a test to any potential new right not explicitly in the constitution, asking whether it is “deeply rooted in history and tradition” and “essential to our scheme of ordered liberty.” However, in Griswold v. Connecticut, the thing rooted in history was not a brand-new contraceptive; it was the family relationship which was as “old and as fundamental as our entire civilization.” Abortion is rooted in history partly because making personal choices about family is. Many things rooted in history are either good or bad, or neither good nor bad. Slavery is rooted in history. Forced sterilization and freedom to use birth control both are. If history were the sole justification for fundamental rights, the law would further oppress the oppressed. When emancipation was accomplished on a federal level, freedom for slaves was not rooted in history. It was a sea change, but freedom for people in a liberal democracy was rooted in history. When women went from not being able to have credit cards or mortgages in their own names to having those rights, the new rights afforded them were not rooted in history. Indeed, rights are how we refute a world history replete with authoritarian fascists, man-centric leaders of ancient and historic democracies, and communist dictatorships. This Court uses an analysis of ancient and quite recent history to justify its conclusions. The brief mention of the Magna Carta speaks for itself.

The majority concluded that abortion was not traditionally legal or socially accepted. The dissent dispels that idea in its review of recent history and the cases that preceded Roe v. Wade. But the question really could be something else altogether like whether liberty itself, and privacy and family are deeply rooted in history. They have been determined to be. It also could be whether abortion’s occurrence was steeped in history. Abortion happened in ancient, biblical times. That is, people liking or not liking it is not exactly the test. The fundamental-ness of the right is not to be a tally of how many people exercise it or approve of those who do. For many people, the freedom never to have an abortion, to choose to remain pregnant, is an important luxury. The absence of a one-child policy is itself a sign of liberty. The ability to vocally criticize abortion and to help decrease it through education, contraception, and fetal surgical procedures to resolve anomalies prior to birth are part of its role in history. The desire to save both mother and fetus and the medical advances that allow for that are part of the history of abortion, family decision making, and privacy too. Whether something is steeped in history is not determined by a popularity contest.

Is it best left to legislatures?

I am personally not a fan of leaving reproductive freedom up to a state legislature. The protection of minority viewpoints is a key component of constitutional law. A floor for liberties beyond those delineated like free speech or freedom of religion must belong somewhere. States do recognize many individual rights. But when individuals go to challenge state laws, the federal court system should help protect rights. Roe v. Wade and Planned Parenthood v. Casey were merely cases that required states to meet a floor. They did not dictate state law or forbid all restrictions on abortion. The Mississippi law in Dobbs very well could have survived scrutiny under Casey’s undue burden test. Allowing a law or striking it down is very much the role of a court. The Court did not need to discuss the question of what is steeped in history and tradition at all. A role and normally an effect of the US Constitution is to protect some minority viewpoints in productive ways that foster plurality. That is why state legislatures cannot infringe certain rights merely because they were elected to make laws. (Pro-choice is not a minority viewpoint in the US population, but it is in some states.)

The majority discussed potential life and the legitimate state interest in it, something well recognized as the basis for allowing any regulation of abortion at all. There was more than potential life in the victims of mass shootings and individual shootings rampant in the United States, but the same justices seemed not to care at all. The hypocrisy of a court that will not allow states to make commonsense, reasonable gun control laws and then acts like a proponent of states’ rights for the sake of protecting potential life when it comes to abortion makes another question important.

How much can people trust these justices?

The Court distinguished abortion from other aspects of family, reproduction, and relationships including contraception, parental rights, same sex marriage, and freedom from sterilization. The majority said this decision does not affect those other rights, that abortion is different. I personally am trusting the Court to exercise restraint and to not interfere with any of those despite threats to them by one rogue concurring justice. But I can see that it is difficult to trust these justices to leave those rights intact. In a close critical read, people may notice a glaring lack of dedication to those other holdings, a disdain for substantive due process, and maybe just a sense that a few justices held their noses and distinguished abortion from those other rights when they are not fans of the other rights either.

Moving Forward

“Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens.” -Justice Breyer, joined by Justices Sotomayor and Kagan, dissenting.

Hopefully, states will find a way to fulfill their ethical obligations to reduce maternal mortality. The US rate is abysmal already, and the maternal mortality by race and socioeconomic status is painfully disparate. For the states with abortion rights, pregnancy won’t feel any more police-y than it did before. For the other states, hopefully women will take the lead through their right to vote. Voting, where politics is not entrenched and districts are not gerrymandered, is a way to achieve the society you hope for.

Attention to male contraception has never been more important. Decreasing demand for abortion is a worthy endeavor on which the vast majority of the country might agree. Engaging men (the providers of sperm) in the effort to decrease demand for abortion is a crucial aspect. All laws concerning child support and the obligations of fatherhood may need attention and enforcement.

All things considered, many states have protected reproductive rights and have coverage for contraception. New York will likely remain the same operationally (albeit with increased demand from out-of-state seekers of healthcare services). While there are so many charged commentaries, articles, tweets, and memes, it is important to recognize the limitations of the decision. It is a terrible decision, but this is not an end to autonomy as it applies to health and health care, nor is it an end to other personal rights. It does not end all rights of pregnant women and should not justify a one-child policy were authoritarianism to come from a different angle. It is not fetal personhood. It is not (yet?) a dystopian world where pregnancy requires an ankle bracelet or a separate passport for the fetus. Prosecutorial discretion may lead to less enforcement of laws penalizing doctors or pregnant women than people anticipate. Where prosecutors are elected, women should pay attention and run for office, as should people who support prosecutorial discretion to avoid penalizing reproductive health care.

There is a lot of news highlighting worst cases. And that is important. I do not want to downplay the dangers. But it may be worth remembering that the decision does not bar other ways to achieve the right: states can shore it up, a federal statutory right may be enacted in the future, and even a constitutional amendment is possible (although unlikely). It is clear that consistency is a precursor to regaining any public trust in the judiciary. Honesty, reason, and reasonableness should infiltrate state and local politics as a way to depolarize inflamed issues and promote common sense. Somewhere in the constitution, our bodies are our own. For now, that may need to be somewhere in the state constitution.

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