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Fundamental Rights and State Interests

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Since there seems to be some confusion here, allow me to save time in comments by explaining a basic distinction:

1)Under current law, a woman has a fundamental right to choose an abortion. And if Griswold is right, this conclusion is inescapable. (It’s possible to argue that this implicit right doesn’t exist, of course, but that’s a different argument.)

2)To say that a woman has a fundamental right to choose an abortion does not mean that this right is unlimited. The Supreme Court’s current standard has watered the right down in O’Connor’s classic incoherent manner, but even if you believe in a robust right it can be abridged if legislation is narrowly tailored to a compelling state interest. No rights are absolute, and this certainly includes the right to privacy. Bans on post-viability abortions with a health exception qualify. Bans on pre-viability abortions as they are typically written and enforced do not. If you think that obtaining an abortion should carry less legal sanctions than spitting on the sidewalk, you’re essentially conceding that the state does not have a compelling enough interest to override a fundamental right.

At any rate, to say that a right can be overriden in certain limited circumstances is quite different than the more typical conservative claim that a woman’s right to choose an abortion doesn’t exist at all.

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  • Mike

    OK, then how is it inconsistent with Griswold to say that the state’s interest in the fetus overrides the woman’s privacy as early as conception?
    Answer: it isn’t.
    (No, I’m not recommending it.)

  • OK, then how is it inconsistent with Griswold to say that the state’s interest in the fetus overrides the woman’s privacy as early as conception?
    It’s not inconsistent with Griswold but it is inconsistent with Roe in which Blackmun seemed to attach the compelling state interest to the viability of the fetus outside the womb.
    Agree that if you drop that framework and adopt a new one which attaches CSI to conception, Griswold by itself doesn’t mandate a right to abortion. I think that ultimately is where a conservative court is headed.

  • Ronsch

    Different *from* not different *than*

  • OK, then how is it inconsistent with Griswold to say that the state’s interest in the fetus overrides the woman’s privacy as early as conception?
    Answer: it isn’t.

    You simply, once again, fail to grasp that White, Scalia et al aren’t saying that a state’s compelling interest in protecting fetal life overrides a woman’s fundamental right to choose an abortion. They’re saying there’s no fundamental right to choose an abortion at all. That position is inconsistent with Griswold, and in any foreseeable context would also rule out bans on first-trimester abortions.

  • jon

    Wait just a minute – women have rights? Since when? This certainly can’t be either scriptural or an originalist interpretation of the Constitution!

  • (Griswold would, I mean.)

  • You simply, once again, fail to grasp that White, Scalia et al aren’t saying that a state’s compelling interest in protecting fetal life overrides a woman’s fundamental right to choose an abortion. They’re saying there’s no fundamental right to choose an abortion at all. That position is inconsistent with Griswold, and in any foreseeable context would also rule out bans on first-trimester abortions.
    I think Scalia’s position is even more extreme, that there is no such thing as a right to privacy except in specifically articulated circumstances, such as where a search warrant is required.
    He’d just as soon throw Griswold out the door with Roe.
    But I’m not sure he can move the court in so radical a direction, so I think assertion of a state interest in fetal life is their ultimate destination if conservatives continue to dominate the court.
    I’ve always felt the weakness of Blackmun’s decision was tying the right to abortion to the viability of the fetus. What if medical technology one day allows gestation outside the womb shortly after conception? Would the state then have an interest in ending first trimester abortions?

  • Yes, Scalia’s position is at least coherent; he believes there’s no right of privacy. White’s position (apparently shared by Alito and Roberts) is ridiculous.

  • Abortion is one of those odd areas where extremist positions are often more logically consistent.
    The extreme anti-abortion position is to outlaw the procedure in cases of rape or incest; this is at least consistent with an ideology which defines human life at conception, and the more “moderate” anti-abortion position can’t explain why the innocent “offspring” of rapists and incestous relatives should be punished and forfeit their putative lives for their “fathers” misdeeds.

  • Mike

    I’m not interested in what Scalia is saying. (That’s generally true, so this occasion is merely an instance of the usual rule.) My point is that a practical right to abortion (that is, one that isn’t always subordinate to other rights) is not a logical consequence of Griswoldian privacy.

  • Margarita

    Under current law, a woman has a fundamental right to choose an abortion. And if Griswold is right, this conclusion is inescapable.
    The flaw in this analysis is that the law in general, and constitutional law in particular, is not an exercise in formal logic. Contraception and abortion can be distinguished factually, medically, historically, culturally, etc. Judges draw this-far-and-no-farther lines all the time. It’s what they do. (Stay tuned for the next 50 years of 2nd-Amendment jurisprudence.)
    It’s not what they should do in this instance, but there is nothing “inescapable” about from a legal-reasoning perspective.

  • aeroman

    I suppose you could say Mike etc are wrong b/c if the state interest portion of Roe went the other way, there’d still technically be a fundamental right that encompasses abortion — but that doesn’t actually provide constitutional protection in that arena.
    But yeah, otherwise, Mike etc are right that you can come out the other way in Roe while still being consistent with Griswold just by using a different approach to the state interest section. Whether that’s what specific justices advocate isn’t material to the question of whether one conclusion is “inescapable.”

  • aeroman

    Which upon rereading I see seems to be your position, too, Scott. Hooray! Sorry for the superfluous comment.

  • Mike etc are right that you can come out the other way in Roe while still being consistent with Griswold just by using a different approach to the state interest section.
    Well, you can, but virtually nobody does.

  • Joe

    I don’t think it is “inescapable” that once you support Griswold that you have to support Roe. I think many rights are pretty strong w/o being ‘inescapable.’
    There is a clear connection and I support both. Without Roe, privacy would be less secured. But, in no way would there be no “right to privacy” w/o Roe. Privacy covers much more ground. A past post seemed to elide past this point.
    Griswold also focused on marital privacy. It recognized a general right to privacy for which marital use of conceptives was but one aspect. Pre-Roe lower courts understood the point.
    But, abortion was not necessarily a patently obvious part of it. So thought about a 1/3 of the judges who decided the issue before Roe. Cf. Harlan’s point in Poe that Ct’s law was so rare to be clearly arbitrary with the number of anti-abortion laws on the books at the time.
    Also, around 90% of abortions occur in the first trimester. When I think “fetal” life, I don’t think embryos. Say “fetal life” and you have images of third trimester fetuses … it is misleading.
    Before the “undue burden” rule, abortions were regulated. For instance, a state could require they be done by doctors, especially in the second trimester. Putting aside minors, as medical procedures, there are various limits.

  • Joe

    lot more regulations for minors … also, what Margarita said

  • ema

    A bit below the level of the legal discussion here, but I do have a question.
    Legally, a woman’s right to have an abortion is not a fundamental/unlimited right because of the state’s compelling interest in protecting fetal life [which] overrides a woman’s fundamental right to choose an abortion. Got that.
    What I’m not clear on is, what is the legal basis for the state’s compelling interest? What is the argument for the state not having a compelling interest in protecting the woman’s life?

  • Jenavir

    Seconding ema’s question: why does the state have an interest in fetal life?

  • Alex

    Seconding ema’s question: why does the state have an interest in fetal life?
    It’s part of the framework of Roe v. Wade: the state’s interest in fetal life increases as the fetus becomes viable outside the womb.
    You’d have to read the decision and analyze Blackmun’s reasoning for more than that; Blackmun himself relied heavily on medical ethicists in crafting the framework of Roe.

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