Reproductive Freedom And State Interests

I have a post at TAPPED about the strange new conservative trend toward talking about abortion as weakening America’s precious baby supply, an argument that (assuming conservatism wants to preserve any viability at all)–even if it were actually accurate–would obviously prove too much, since birth control is a rather greater brake on fertility rates. I use this to discuss attempts by conservatives to “pull the thread” of Roe without upsetting the Griswold line of cases, which I think usually fails. Since I’m having trouble getting the comments to work and this has come up once before, I thought it was worth explaining this in more detail. A commenter says:

I think that argument is somewhat facile, simply because the main difference between Roe v. Wade and Griswold is the existence of a competing interest — the putative child’s — in abortion cases. That’s not an argument that was advanced to any significant degree in Roe, but it’s one that’s likely to be advanced in any potential repudiation of Roe, specifically for the reason that it would avoid repudiating Griswold.

In theory, this is true: someone can acknowledge that abortion is a fundamental right–which it logically must be, if contraception is–but that is trumped by a more powerful state interest. But, in practice, this is rarely the case. None of the past or current anti-Roe Supreme Court Justices have actually made this argument: Rehnquist, Scalia, Thomas, and White instead argued that a woman’s right to choose an abortion is not a fundamental liberty interest at all. (White actually joined Griswold, making his position hopelessly incoherent.) And, actually, this makes sense, because attempts to “pull the thread” will fail. Anti-Roe arguments, in practice, depend on taking asserted legislative ends at face value and not analyzing the fit between the policy and the stated ends–precisely the opposite of the strict scrutiny applying Griswold requires. Let’s assess the two potentially countervailing interests that could trump fundamental reproductive rights:

• Protecting a woman’s health. While this is certainly a compelling state interest, it is obvious that abortion criminalization is a grossly overbroad means of achieving these ends. The legitimate state interest of ensuring the safety of abortions hardly requires them to be banned altogether. Moreover, this justification runs into the obvious problem that abortion is much safer than bringing a child to term. If reproductive freedom is a fundamental right, this isn’t a remotely hard question.
• Protecting Fetal Life. This is the somewhat more viable enterprise; one can imagine a moral conception of the fetus that could plausibly trump even a fundamental liberty interest. However, it is clear from the way abortion laws are actually written and enforced that abortion laws do not reflect anything like such a consensus. If fetal life was protected, these laws would be strongly enforced, women who got abortions would face serious jail time, juries would convict doctors for performing abortions absent injury, affluent women would not have de facto exemptions from the law, etc. But none of these things are true. Once we stop taking state assertions at face value–and if a fundamental right is involved, we cannot–the fit between the purported interest and the construction and application of abortion bans is too implausible to sustain abortion bans. Legislation delegating these decisions to panels of doctors under vague standards fares even worse in this respect.

Given actual abortion laws, as opposed to abortion laws in some abstract universe, one can have both Griswold and Roe or neither, period.