What Roe Should Have Said I: Amar’s Paradox and Mogentaler

As I mentioned recently, I thought I would devote some time to discuss some of the arguments made in Jack Balkin’s new book, What Roe Should Have Said. (Balkin describes the project here.) Akhil Amar’s mock opinion (which concurs in the judgment striking down Roe but does so on the grounds that women couldn’t vote when the statute was passed, and dissents from striking down the Georgia “reform” statute in Bolton.) As one would expect, his discussion is stimulating even when one doesn’t agree with the conclusions. What I found most interesting, however, is his attempt to identify a paradox in Balkin’s opinion. As I’ll go into later, Balkin points out that the nature of abortion statutes is plainly inconsistent with the state’s justification for their enactment. Amar asks:

“Is the Chief Justice serious when he suggests that were Texas to punish women who seek to self-abort, such an extension of its abortion laws would render its legal code more constitutionally defensible?”

This seems to be a paradox: how can making the law more intrusive make its constitutional case stronger? And yet, I think Balkin is clearly right. A statute that punished self-abortion would be consistent with the idea that the fetus is something analogous to a human life, which might be a compelling enough justification to restrict a fundamental liberty interest; the existing statutes make clear that the state does not believe this, and statutes are based largely on motivations (such as punishing sexual behavior that legislators do not approve of) that are not sufficiently compelling justifications. So, in fact, Balkin’s position is perfectly logical: the underinclusiveness of the Texas statute fatally undermines Jeffrey Rosen’s blithe (but entirely unsupported by evidence) assertions that the Texas law was passed solely to protect fetal life.

This is one thing I like about the plurality opinion in Canada’s landmark abortion case, R v. Morgentaler. The decision struck down Canada’s 1969 abortion statute, which was similar to the Georgia law struck down in Bolton: to obtain an abortion, women had to get the approval of a hospital’s “therapeutic abortion committee.” Many advocates of reproductive freedom cite Justice Wilson’s concurring opinion as a model. But while it has some very good feminist rhetoric, her legal argument is actually a straightforward substantive due process argument rather than being based on the gender equality provisions of the Charter. (Although at least it’s good substantive due process; one way of explaining the problems with Blackmun’s opinion is that the Supreme Court of Canada did a better job of marshalling the relevant American precedents than Blackmun’s opinion did.) Chief Justice Dickson’s opinion makes what in some ways a more intriguing argument, linking the fundamental rights at stake with the procedural defects that make clear that the state did not have a sufficiently compelling justification to abridge a woman’s reproductive freedom in this manner. First, as Dickson points out, the fundamental right at stake is clear:

“At the most basic, physical and emotional level, every pregnant woman is told by the section that she cannot submit to a generally safe medical procedure that might be of clear benefit to her unless she meets criteria entirely unrelated to her own priorities and aspirations. Not only does the removal of decision-making power threaten women in a physical sense; the indecision of knowing whether an abortion will be granted inflicts emotional stress. Section 251 clearly interferes with a woman’s bodily integrity in both a physical and emotional sense. Forcing a woman, by threat of criminal sanction, to carry a foetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman’s body and thus a violation of security of the person.”

Moreover, the particular procedures established by Parliament have further negative effects on the health of women: “The evidence indicates that s. 251 causes a certain amount of delay for women who are successful in meeting its criteria. In the context of abortion, any unnecessary delay can have profound consequences on the woman’s physical and emotional well-being.”

However, as Dickson also notes, “finding a violation of security of the person does not end the…inquiry. Parliament could choose to infringe security of the person if it did so in a manner consistent with the principles of fundamental justice.” A woman’s right to choose, like all other rights, is not absolute, and could be abridged given a sufficiently compelling justification, and a statute that was written in a manner consistent with such a justification. What the state cannot do, however, is abridge this fundamental right by erecting procedures that give medical professionals arbitrary discretion, in ways that clearly interfere with fundamental rights in ways clearly unrelated to the state’s legitimate interests. In fact, the procedures established by the state are hopelessly arbitrary, both facially and in their application:

“A further flaw with the administrative system established in s. 251(4) is the failure to provide an adequate standard for therapeutic abortion committees which must determine when a therapeutic abortion should, as a matter of law, be granted. Subsection (4) states simply that a therapeutic abortion committee may grant a certificate when it determines that a continuation of a pregnancy would be likely to endanger the “life or health” of the pregnant woman. It was noted above that “health” is not defined for the purposes of the section. The Crown admitted in its supplementary factum that the medical witnesses at trial testified uniformly that the “health” standard was ambiguous…

There has been no sustained or firm effort in Canada to develop an explicit and operational definition of health, or to apply such a concept directly to the operation of induced abortion. In the absence of such a definition, each physician and each hospital reaches an individual decision on this matter. How the concept of health is variably defined leads to considerable inequity in the distribution and the accessibility of the abortion procedure.

Various expert doctors testified at trial that therapeutic abortion committees apply widely differing definitions of health. For some committees, psychological health is a justification for therapeutic abortion; for others it is not. Some committees routinely refuse abortions to married women unless they are in physical danger, while for other committees it is possible for a married woman to show that she would suffer psychological harm if she continued with a pregnancy, thereby justifying an abortion. It is not typically possible for women to know in advance what standard of health will be applied by any given committee. Parker A.C.J.H.C., at p. 377, found clear evidence that s. 251(4) provided no adequate guidelines for therapeutic abortion committees charged with determining when an abortion should legally be available.

[…]

The Crown argues in its supplementary factum that women who face difficulties in obtaining abortions at home can simply travel elsewhere in Canada to procure a therapeutic abortion. That submission would not be especially troubling if the difficulties facing women were not in large measure created by the procedural requirements of s. 251 itself. If women were seeking anonymity outside their home town or were simply confronting the reality that it is often difficult to obtain medical services in rural areas, it might be appropriate to say “let them travel”. But the evidence establishes convincingly that it is the law itself which in many ways prevents access to local therapeutic abortion facilities. The enormous emotional and financial burden placed upon women who must travel long distances from home to obtain an abortion is a burden created in many instances by Parliament.”

As I will explain in my next post, similar objections would apply to a law that was less facially vague but applied in an arbitrary manner.

There are two things I like about the Canadian decision, although in some respects it give more leeway to the state. First, it is very attentive to the way abortion laws operate in practice, and the way in which this undermines potential justifications for abortion regulations. And secondly, it effectively calls the bluff of pro-lifers. The state does have a potential interest in protecting fetal life, but it does not advance this interest by enacting arbitrary laws that permit some classes of women to get abortions but not others. I am absolutely confident that pro-choicers can win a fair fight in legislatures. The existence of laws banning abortion depend on the fact that affluent women will be able to obtain them; abortion laws that were actually clearly written and fairly applied would be repealed in about 10 seconds. In Dickson’s opinion, I think, is the answer to Amar’s apparent paradox.