Roe Was Right (Pt. II)

In my previous post, I argued that Roe v. Wade did not come “from nothing,” but was a logical application of an extensive constitutional tradition. In an excellent post, sympathetic Roe critic Publius (via Julie Saltman) accepts the existence of this tradition–documenting every landmark case–but nonetheless rejects the argument because he is a textualist. As I mentioned, this is fair; I don’t deny that one can argue against Roe using any number of abstract grand theories. Publius offers two options for Roe justifiers: “(1) textually justify the right to privacy; or (2) use stare decisis.” I don’t believe that there are only two options; first of all, I don’t think that Roe defenders must use Publius’s preferred grand theory, as opposed to another one. In addition, the approach I outlined yesterday is largely a stare decisis approach, although this may suggest that I think the cases should be applied although they were wrong, and I believe Skinner (striking down a law permitting the state to sterilize petty criminals), Griswold (arbitrarily enforced contraception laws) and Lawrence (arbitrarily enforced “sodomy” laws) were all correct. Anyway, with these caveats it might be useful to follow Publius’s roadmap. I could argue why I think structuralism is a better grand theory than textualism, or why textualist critiques of Griswold are flawed (how can laws that are concededly “unenforceable” be consistent with even a narrow reading of the due process clause?) But I’ll leave that to others, for two reasons. First, I don’t believe in the existence of grand theories that produce determinate results in contentious constitutional cases. Second, are more importantly, no justice in the history of the Supreme Court (including Hugo Black, who joined the unanimous majority in Skinner) has ever consistently applied “textualism” (or any other grand theory.) I don’t believe that Roe should be held to a higher standard than other cases. If, like Robert Bork, one believes the history of judicial review is based on the wrong grand theory and therefore illegitimate, it becomes rather difficult to argue why Roe, in particular, should be singled out. So I’ll let someone else pursue this angle. For me, a tradition of plausible arguments agreed to by justices across the ideological spectrum is sufficient. But does this tradition apply to abortion laws?

As I mentioned, abortion is without question a harder case than Griswold or Lawrence. I believe that women have a right to reproductive freedom, and unlike Byron White, I do not believe that abortion involves merely the “convenience” of a woman. But that isn’t the end of the analysis. The reason for this is obvious: the potential argument that the fetus is human life that the state can protect, which goes beyond the consensual behavior of Griswold (or the severe invasion of Skinner.) Indeed, I would go so far as to say that if the argument that the fetus is a human life that must be protected is accepted, Roe is clearly wrong. If a state passed a law, based on a consensus view that the fetus was life and had to be protected, and was willing to enforce these laws equitably, as I judge I would uphold such a law as constitutional however much I disagreed with the underlying moral view.

But, of course, we can stop right there. The abortion laws struck down by Roe are not plausibly based on the premise that the fetus is a human life, and these laws were not enforced equitably. Let’s take these two points separately:

1)Blackmun’s opinion did a terrible job of both connecting its voluminous historical evidence to its legal arguments, and of tracing the extensive legal tradition that supported Roe. He did bring up one more important point, however: there is little evidence that state abortion laws, most of which dated from the late 19th century, were primarily concerned with fetal life. Both concern about the danger of the procedure (now, of course, obsolete) and patriarchal conceptions of female sexuality were more important. And, of course, this was true of even more recently revised abortion laws, and of current proposals for new abortion laws. As I have written before, abortion laws tend to be a legal, moral, and ethical shambles that are inexplicable unless their primary objective is regulating the sexual behavior of (some) women. Laws designed to protect fetal life have no reason to exclude women from punishment, or contain rape, incest or health-of-the-mother exceptions, or to permit women to obtain abortions across state lines. As the nature of these laws indicate; there is nothing remotely resembling a consensus that a fetus is a human life, and only a tiny minority of the minority that nominally accepts this position acts is a way that is consistent with this belief. For this reason, American abortion laws are directly comparable to Griswold and Lawrence: they are primarily attempts to regulate consensual sexual behavior. Perhaps these laws would pass constitutional muster if fairly applied. But this brings us to point number 2:

2)Abortion laws in the United States have never been applied equitably, or anything remotely approaching this. As I have written before, the definitive account can be seen in Chapter 2 of Mark Graber’s Rethinking Abortion. When I say that abortion laws aren’t equitably applied, I don’t mean this in the sense that any law in any context short of utopia is unfairly applied. Rather, I mean that affluent white women had virtually universal de facto access to safe abortions performed by competent doctors in hospitals. Such grey market abortions could have been easily stopped–you don’t have to march a respectable ob-gyn out of work in handcuffs many times to dissuade him, and these abortions left a paper trail. The laws weren’t enforced because there was no social will to enforce them. Just as the effect of contraception laws was to prevent to distribution of free contraception to the poor, the effect of abortion laws was to deny abortion to poor women and women of color. It doesn’t exactly require a radical reading of the due process and equal protection clauses of the 14th Amendment to see this legal framework as intolerable. When one considers how abortion laws are actually applied, the case for their constitutionality is extremely weak. In addition, this selective enforcement makes clear that protecting fetal life was not particularly important to legislatures (unless fetuses only become intrinsically valuable when they are carried by poor women or women of color.)

So, in sum, I believe there to be a very strong constitutional case against the abortion laws struck down by Roe. There exists a longstanding constitutional tradition on its behalf, and the best argument against the applicability of this tradition is plainly inoperative when one considers the origins, text, and application of the existing laws. While one can imagine, in the abstract, abortion laws that would pass constitutional muster, this is irrelevant in the current American context. Judges must evaluate the laws that actually exist. However, the course I’ve taken here means that I can’t end here. Since the text and traditions of American constitutionalism permit but do not indisputably compel the outcome in Roe, a pragmatist must further consider the consequences of the decision for democracy, and also whether the effect of Roe will be more equitable than the laws it nullified. I will turn to these questions in my last post.