After the first technical post with extensive discussions of Canadian case law, let me try to lay out the case for Roe made by Balkin and the other authors.
As I said in the last post and have also written before, the question of whether a woman’s reproductive freedom is a fundamental right under existing American law is not a terribly difficult one. To run at it from another angle, let me quote Justice Stevens in Thornburgh. Stevens is responding to Byron White, who concurred in Griswold (arguing that “It would be unduly repetitious, and belaboring the obvious, to expound on the impact of this statute on the liberty guaranteed by the Fourteenth Amendment against arbitrary or capricious denials or on the nature of this liberty”) but dissented in Roe, in which he described a women’s interest as a mere “convenience.” As Stevens points out, this is simply nonsensical:
For reasons that are not entirely clear, however, JUSTICE WHITE abruptly announces that the interest in “liberty” that is implicated by a decision not to bear a child that is made a few days after conception is less fundamental than a comparable decision made before conception. There may, of course, be a significant difference in the strength of the countervailing state interest, but I fail to see how a decision on childbearing becomes less important the day after conception than the day before. Indeed, if one decision is more “fundamental” to the individual’s freedom than the other, surely it is the postconception decision that is the more serious. Thus, it is difficult for me to understand how JUSTICE WHITE reaches the conclusion that restraints upon this aspect of a woman’s liberty do not “call into play anything more than the most minimal judicial scrutiny.”
Stevens is obviously right. A woman’s interest in her reproductive autonomy certainly doesn’t decrease after she becomes pregnant. The state’s interest may (and, in fact, quite clearly is) greater, but that’s an entirely different issue. So as long as Griswold and Eisenstadt remain good law–and most of Roe‘s critics assure the public they have no intention of overturning them–it is clear that a woman has a fundamental right to obtain an abortion.
The important question, then, is whether the laws banning abortion represent a compelling state interest, and whether abortion laws are narrowly tailored restrictions on a woman’s right to reproductive autonomy that reflect these interests. Many of the authors address this point, and Balkin in particular focuses on it. Balkin identifies the three major state interests at stake (p.47), and all are certainly legitimate:
- Protecting the life of the fetus
- Protecting the life and health of the mother
- Regulating the medical profession to protect public health and safety
So this is the question on which Roe turns: are abortion laws (whether outright bans of the Texas variety, or the elaborate committee-approval system established by the Georgia statute) narrowly tailored assertions of these state interests? And the answer is quite clearly “no.” If the statutes reflect the first interest, they are incoherent and underinclusive; if the latter two, they are transparently overbroad.
#2 and #3 can be dispensed with quickly. Given that obtaining an abortion is considerably safer than carrying a pregnancy to term, these justifications are not serious. While these justifications would justify some minor restrictions (such as a requirement that abortions be carried out by licensed medical personnel), they obviously cannot justify preventing some women from getting abortions altogether. Moreover, as argued in the last post, the arbitrary obstacle course that Georgia required women to run was not merely unrelated to but actively counterproductive to the goal of protecting women’s health.
#1 is a little harder, but given the way abortion statutes are actually written they do not reflect a consensus that fetal life must be protected. I made this argument at length in the prior post, but as Balkin says these laws “are conspicuously underinclusive given the state’s asserted interest in protecting fetal life.” (p.50) Laws that represented a sufficiently compelling interest in protecting fetal life would not exempt women from punishment, or exempt self-abortions from legal restrictions. In addition, I would add that the arbitrary manner in which even these incoherent restrictions are enforced further reinforces this disjuncture. Abortion statutes are much more plausibly related to state objectives (such as the control of female sexuality) that are not sufficiently compelling to restrict a fundamental right.
Statutes that reflected a strong consensus that a fetus was a life that had to be protected would raise the difficult question of balancing a fundamental right against a compelling state interest. But abortion laws as they’re actually written and enforced in this country don’t require us to resolve this. Based on its existing precedents, the Court was right to strike the laws down.