Roe, Process Theory and Due Process
By I’m sure regular readers of this blog are grateful for the reprieve from interminable abortion posts. However, Publius’ reply to my defense of Roe v. Wade (1, 2, 3) raises many excellent points, and I hope it can be used to clarify the discussion. First of all, let me say where we agree go and go from there:
Process Theory. I agree with Publius that strong process theories (briefly, the argument that judicial intervention is most justifiable when it corrects failures in legislative processes) run into obvious problems that cause them to fail as grand theories. (I believe that similar problems plague all grand theories, but it’s unnecessary to argue this point now.) Obviously, some groups are inevitably represented more than others in the democratic process, and the judiciary cannot solve all of these problems. Drawing this line to distinguish between easy cases like Baker v. Carr and more run-of-the-mill inequities can be difficult, but I’m inclined to agree with Publius that the laws struck down by Roe fail under process theory alone (because women were either disenfranchised or very severely unrepresented), but current laws probably would not. The systematic underrepresentation of women has by no means been fully alleviated, but it falls into the category where it’s difficult to distinguish women from any number of groups who are also underrepresented. I still believe that process arguments are relevant to simple-minded arguments that Roe is “counter-majoritarian,” but it, in and of itself, would not rule out any abortion statute passed by a contemporary legislature.
A Second Bite? This leads me to another important agreement. To clarify my argument, I do not think that any theoretically conceivable abortion law fails to pass constitutional muster. While I do believe that American constitutionalism recognizes reproductive freedom as a fundamental right, such a right would not necessarily trump a consensus view that the fetus was a human life. In this sense, the precise wording of Roe is suboptimal. (For me, a better model would be the analogous decision of the Supreme Court of Canada in R. v. Morgentaler. Both the plurality opinion, which makes a procedural argument, and Wilson’s concurrence, which emphasizes women’s equality, make important arguments not effectively presented in Roe. Of course, Wilson’s gender equality argument has more explicit legal materials to work with, but I believe the equal protection clause does protect gender equality, so for me the differences aren’t important in this case.) In my opinion, a clearly worded, fairly enforced abortion statute premised on the fetus being a human life and that didn’t delegate abortion policy to doctors would probably be constitutional. My most important difference with Publius, I think, is in our perception of the likelihood that such a statute will be passed. Or, more precisely, what counts as “fairly enforced.” Which brings us to the key point of disagreement.
Does the Inequitable Enforcement of Abortion Statutes Matter? Addressing my argument that affluent white women have a de facto exemption from abortion laws, Publius writes:
Thats true, and its a tragedy. But I’m not sure it’s unconstitutional just because it hurts poor people the most. This is an area where the conflict between weak versus strong process theory is clear. Poor people get royally screwed in a number of ways, but how do you justify drawing a line around this minority and not others?
My position is that the unwillingness of authorities to enforce abortion laws against the affluent is different than ordinary instances of the poor getting screwed. I see this as not being a process theory argument, but a due process argument. Or, if you prefer–as Mark Graber, who originated this argument, believes–an equal protection argument. The Constitution does not guarantee that the poor will succeed in the political process. There is not a justiciable failure of process involved when ADFC is cancelled (however deplorable one may find this as public policy,) even though poor women are underrepresented. Or, to make the more direct analogy, states are not constitutionally required to fund abortions, although this disproportionately affects poor women who have less political clout. But the Constitution most certainlydoes guarantee that once laws are passed, they will be fairly enforced; the government cannot provide welfare to white women but not black women. To borrow Stephen Holmes’ language, the prohibition of self-exemption from general laws is at the very core of the rule of law. Obviously, in any non-utopian society there will be inequities in enforcement. But, as I argued previously, this goes beyond that. It is not simply ordinary for classes of people to have a de facto exemption from the laws. Wealthy people are much less likely to commit 1st degree murder, and are more likely to get a fair trial and have more leverage on prosecutors, but wealthy people are not exempt from murder laws. My argument here is, in a sense, not about substantive rights, but about procedural rights. Laws that are systematically unenforced against classes of people are unenforceable if due process and equal protection mean anything. I don’t believe that powerful interests can pass laws that sereverly burden the lives of poor women if they’re not willing to enforce the laws against other women.
With respect to cases like Griswold and Lawrence–which, if I read him correctly, Publius believes were incorrectly decided–I think this argument is dispositive. Because laws banning sodomy and the use of contraception criminalize ordinary, private, consensual behavior, they aren’t fairly enforceable even in theory. Roe is tougher; states could probably enforce abortion fairly bans if they were determined to. But I do insist that they cannot enforce abortion laws against some classes of people but not others. (And, again, there is an additional difficulty with this inequitable enforcement: it undermines the only sufficient justification for abortion laws. If well-to-do women can get grey market abortions, it’s pretty clear that there isn’t a consensus that the fetus is a human life, but that abortion laws are about regulating sexuality. That’s not enough to trump a fundamental right.) While I would have written Roe in a way that made this clear, the more categorical arguments of Roe don’t really bother me because I simply don’t believe that abortion laws would be equitably enforced. As Graber says, if pro-lifers have a strategy for ensuring that abortion laws are consistently enforced, it’s the best-kept secret in American politics. In addition, while I might prefer something like Morgentaler to Roe, I also think Roe is far more defensible than a decision claiming that any abortion law that exempts the life of the mother is constitutional–and that’s the real alternative right now.
A Note on Politics A final point concerning the pragmatic defense of Roe. Publius poses the obvious question: “Lemieux’s third argument is that Roe isnt really thwarting democratic majorities, because substantial majorities of Americans favor anti-criminalization. But if thats true, then why do we need the court to intervene at all?” I have written at length about this issue before. The short answer is that American legislatures are not majoritarian, and various aspects of the abortion issue (particularly the inequitable enforcement of abortion statutes) skew legislative outcomes toward the pro-life position. I agree with Publius that these process considerations are probably not enough to justify striking down abortion statutes in and of themselves at the current time (and, of course, since legislatures were designed to be countermajoritarian in many respects, laws passed under these processes cannot be unconstitutional for that reason), but they remain relevant to pragmatic considerations. We can not be sure that majority preferences would allow liberalized abortion in most states. (And, of course, I agree with Publius that the federal government would almost certainly intervene, and there’s no reason to believe that the Supreme Court would apply Lopez in a principled manner.)
The Core of the Roe defense: due process and equal protection. Publius offers two alternatives preferable to process theory: stare decisis and a defense of the right to privacy. With respect to the former, I hope he or another scholar will pursue the matter further and try to give a better explanation than Souter did in Casey. I can’t do this in good faith, because basically I think on this issue Scalia is right. I think precedents should be overturned if they’re incorrectly decided. There may be a principled reason why we can keep Roe on stare decisis grounds without being stuck with Bowers, but frankly, I haven’t heard one.
I would argue that the core of my defense, however, is a defense of the right to privacy (although process theory matters to the laws Roe actually struck down, and to pragmatic assessments of its current effects.) Because of fundamental equal protection and due process considerations, I think (however poorly developed the actual opinion) that Douglas was right: Griswold and Lawrence are clearly correct. I don’t believe that laws that are arbitrarily enforced, and within our constitutional framework can’t be anything but arbitrarily enforced, can be constitutional. And I believe, for this reason, that this line of cases applies to abortion laws (with the caveat that Roe would have to be revisited in the extremely unlikely event that a social consensus that a fetus was a human life developed.)