The Two Rights to Abortion

JB

In my 2005 book, What Roe v. Wade Should Have Said, and again in my recent article on Abortion and Original Meaning, which will be the subject of a symposium in Constitutional Commentary, I argued that there are not one but two rights to abortion. In this post I want to explain what the two rights to abortion are and why it matters that there are two of them. The discussion that follows is adapted from the article.

The first right to abortion is a woman's right not to be forced by the state to bear children at risk to her life or health. The second right is a woman's right not to be forced by the state to become a mother and thus to take on the responsibilities of parenthood, which, in our society are far more burdensome for women than for men. Although the first right to abortion continues throughout pregnancy, the second right need not. It only requires that women have a reasonable time to decide whether or not to become mothers and a fair and realistic opportunity to make that choice.

The Supreme Court's decisions in Roe and Casey run these two rights together, producing Roe's complex trimester system and Casey's undue burden model. In both models, states must allow abortion up to the point of viability. After viability, states can "regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." Although the Court did not say this directly, it follows that abortions must also be available before viability when necessary to preserve the mother’s life or health. Thus, we can see that in the Supreme Court's model, what I call the first right-- the right not to bear children at risk to life and health-- continues throughout the pregnancy, while the second right-- the right to avoid compelled motherhood-- is available until the point of viability.

In his forthcoming Harvard Law Review article on Medical Self-Defense, Eugene Volokh offers a different take on the two rights. What I call the first right to abortion he views as the constitutional basis for a more general right of individuals to engage in medical procedures necessary to protect their lives. (By the way, Eugene has been serializing his article on his blog, and you can begin reading it here.).

There are some interesting differences between Eugene’s formulation and mine. For example, his right of medical self-defense is both broader and narrower than what I call the first right to abortion. Eugene's formulation is narrower because he focuses on the right to protect a persons' life and not the right to protect health. By contrast, I argue that the first right to abortion protects both a woman's life and her health. Eugene’s right of medical self-defense is broader because it is not specifically connected to reproductive rights, or for that matter, to gender equality. Finally, following Roe and Casey, Eugene finds the source of the right of medical self-defense in the Due Process Clause. In my work I argue that the Due Process Clause is not the proper source of the abortion right. I find the source of the first right, as well as the second, in the Equal Protection Clause's prohibition against sex inequality.

The first right to abortion is not time limited-- it continues throughout pregnancy. Women should always have the right to preserve their life or health when it is threatened by the continuation of a pregnancy. The second right, however, need not continue throughout pregnancy; it requires only that women have a reasonable time to decide whether to become mothers and have a fair and realistic opportunity to make that choice. The state's interest in protecting unborn life is most compelling in the later stages of pregnancy. But letting states vindicate this interest when it is strongest is not necessarily inconsistent with the second right to abortion. When a woman's health and life are not at risk, the second right requires that women have a right to a fair and realistic opportunity to choose whether or not to become a mother, and in most cases this choice can usually be made in the earlier stages of a pregnancy. In fact, about 88 percent of all abortions occur in the first twelve weeks of pregnancy (roughly the end of the first trimester). Only 7 percent occur between weeks thirteen and fifteen, and only 4 percent occur between weeks sixteen and twenty. Twenty weeks is about halfway through the average pregnancy. Only 1 percent of abortions occur after that point, and only a vanishingly small number of abortions occur past twenty four weeks, the point of viability.

Why is it important to recognize two rights to abortion? I argue that the two rights to abortion help us understand how legislatures can regulate abortion consistently with the Constitution, and why the Court's trimester system, which collapses the two rights, was unnecessary. Separating out these two rights also makes clear that courts face different problems in articulating and protecting them. Implementing the first right does not require courts to draw lines based on the progress of the pregnancy; rather it primarily concerns how much discretion legislatures must give doctors in determining whether a woman faces a genuine risk to her life or health that justifies exercising the first right.

In Roe and Casey the Court held that the test was one of "appropriate medical judgement." This right is implicated in the partial birth abortion cases, including Gonzales v. Carhart, and Gonzales v. Planned Parenthood, which are currently before the Supreme Court. In the partial birth abortion cases, the question is whether the state may require women to choose a method of abortion that a substantial body of medical opinion regards as less safe than the safest method. In Stenberg v. Cahart in 2000, the Court held that this is inconsistent with the abortion right.

Thinking about the question in terms of the first right helps us see why this is so. If women have a right to preserve their life or health according to appropriate medical judgment– and almost all late term D&X abortions are therapeutic abortions-- they also have the right to use the method that is medically indicated according to appropriate medical judgment.

The second right gives women a reasonable time to decide and a fair and realistic opportunity to choose whether to become mothers. What constitutes a reasonable time and a fair and realistic opportunity to choose combines a number of different factors. Surely it is concerned with the relative developmental state of the fetus. But equally important, it is concerned with the question of what it is reasonable to expect of women who are forced to make one of the most difficult and heart-rending choices in their lives. A reasonable time to decide requires that a woman has enough time to discover that she is pregnant, talk to people she trusts, decide what to do, locate a physician, arrange a time to visit the physician (which may require taking time off from work and arranging child care for other children), make excuses or dissemble to family, friends and employers to explain her absence, travel for the initial consultation, and then make another set of arrangements to go back for the procedure if necessary.

The amount of time necessary may take longer for poor women, women in rural areas, or women in states that impose a series of procedural obstacles that effectively limit the number abortion providers in the state or that impose waiting periods. One might expect that states would prefer that women who choose to have abortions carry them out as early in the pregnancy as possible. However, abortion regulations like waiting periods may require multiple trips to the doctor and perversely increase the amount of time it takes to make the decision and carry it out, thus causing women to seek abortions later in the pregnancy.

One reason why laws that burden poor women are unconstitutional is that they don’t respect the second right to abortion– instead of giving women a reasonable time and a fair and realistic opportunity to choose, they try to discourage the choice by delaying it and making it more difficult to make. The practical effect of post-Casey abortion regulations has been to protect the right of well-to-do and well-connected women to choose abortions, and to allow states to limit the effective rights of poor women because they are easiest to deter and the easiest to push around. In essence, states have been given far more leeway to compel motherhood on the poor than on the rich. From the standpoint of the purposes of the second right to abortion, this is particularly perverse. Precisely because poor women have fewer resources, the burdens of compelled motherood and the derailing of lives that may come with compelled motherood may be far greater for them. The point of the second right is to allow all women, not just affluent women, a fair and realistic opportunity to decide whether or not to become mothers and take on the responsibilities of motherhood. The undue burden test announced in Casey is flawed to the extent that it protects the second right to abortion for only a segment of American women.

In Roe and Casey, the Court chose the point of viability as the period at which the second right to abortion ends. That line is somewhat arbitrary; Justice Blackmun's original idea in Roe was to draw the line at the end of the first trimester, but other Justices pointed out that this would not give some women- particularly poor women-- sufficient time to decide, and so Blackmun eventually settled upon the end of the second trimester. But even this factor is arbitrary and subject to changes in medical technology. In Casey, the Court noted that by 1992, developments in neonatal care had pushed the average point of viability back from 28 weeks in 1973 to 23 or 24 weeks.

Despite these objections, the Court in Casey retained the viability rule first announced in Roe, arguing that "there is no line other than viability which is more workable." It offered two substantive justifications for its choice: First, "viability . . . is the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb, so that the independent existence of the second life can, in reason and all fairness, be the object of state protection that now overrides the rights of the woman." Second, drawing the line at viability "has, as a practical matter, an element of fairness. In some broad sense, it might be said that a woman who fails to act before viability has consented to the State's intervention on behalf of the developing child." These arguments suggest that the Court thought it was making its own independent determination of what constituted a reasonable time for women to decide.

Perhaps the Court was ultimately correct that a uniform line should be drawn at viability uniformly, regardless of the age or poverty of pregnant women or the different circumstances that different women face. But it does not follow that the Court should have drawn the line, at least in the first instance. The issue of what is a reasonable time to decide combines a number of different factors and is inherently legislative. For example, legislatures might decide to extend the time for women in special circumstances in ways that would be inappropriate for courts. Instead of drawing its own line, the Court should have simply announced that women had certain basic rights- a right to preserve life and health and a right to a reasonable time to decide whether to become a parent, and then leave it to legislatures to balance the various considerations of fetal development, women's practical abilities, and the different obstacles faced by different women in different situations.

That would not mean that courts would have nothing to say on the matter. They would eventually decide whether state legislatures had met their constitutional obligations. The first right is relatively straightforward: legislatures would have to allow for abortions whenever life or health was threatened, and they would have to allow the safest methods as judged by a substantial segment of responsible medical opinion. But the purpose of the second right is to give pregnant women a fair and realistic opportunity to decide whether or not to become mothers. Hence legislatures rewriting their abortion laws would have to demonstrate that their statutory scheme had provided such a fair and realistic opportunity.

The approach I advocate is discourse shaping-- it demands that the arguments and justifications a legislature offers to support a law's constitutionality respond to particular constitutional goals and concerns that a court identifies. In this case, it requires legislatures to justify their abortion regulations in terms of how they affect women's practical equality in civil society and their practical ability to choose whether to become mothers, rather than solely in terms of the developmental stage of the fetus. If courts merely struck down existing abortion laws and demanded that legislatures passed new ones, legislatures might make their decisions based on pictures of fetuses. But if courts tell legislatures that they must justify the lines they draw based on whether they provide women a reasonable opportunity to decide whether to become mothers, they will have to organize their discussions and their justifications around the choices and obstacles that real women face. Courts would then decide whether those justifications were sound according to the basic constitutional principles they laid out in their original opinion.

There is a rough analogy between my "discourse shaping" approach and the Vermont Supreme Court's decision in Baker v. State, which held that the Vermont Legislature had a "constitutional mandate" under the state's constitution to find a way to give same-sex couples the "same benefits and protections afforded by Vermont law to married opposite-sex couples." (The New Jersey Supreme Court has recently adopted a similar solution). The Baker court explained the constitutional principles that the legislature had to comply with, but it left appropriate enforcement of those constitutional principles to the legislature in the first instance, noting that the legislature could extend marriage rights to same-sex couples or create a form of "domestic partnership" with similar rights and benefits. In response, the legislature created the nation's first civil unions law. By inviting legislative participation and innovation in enforcing constitutional guarantees, the Vermont Supreme Court diffused much of the political backlash that might have flowed from its groundbreaking and controversial decision. By contrast, when the Massachusetts Supreme Judicial Court held that gays were entitled to marry in Goodridge, it refused to give the state legislature any leeway in enforcement. Although the Massachusetts Legislature ultimately complied with the court's decision, the Goodridge case quickly became identified-- far more than the Baker decision in Vermont -- with courts imposing controversial solutions on majorities. Thus, it may have created a more powerful backlash.

My discourse shaping approach makes even fewer demands on the legislature than the Baker court, because it does not specify when the cutoff point for abortions must take place. It merely requires that legislatures make findings about what period of time is sufficient to give pregnant women a fair and realistic chance to end their pregnancies. It brings the legislature into the process of articulating constitutional guarantees and therefore gives them a sense of democratic responsibility and ownership for the result.

This approach is not "minimalist" in Cass Sunstein's sense of the word. Sunstein has argued that courts should rule narrowly on constitutional questions wherever possible and they should be reluctant to give controversial substantive reasons for their decisions, hoping instead to ground doctrine on reasons that most people can agree to. Sunstein believes that by proceeding in this manner courts make modest progress in promoting constitutional values and catalyze legislative protection of constitutional rights without generating a counterproductive political reaction.

I agree that these are worthy goals but doubt that minimalism is always the best method. Judges do not have to write minimalist opinions to respect democratic processes or to avoid a backlash. To the contrary, giving a legislature guidance about what constitutional principles are at stake may be a better way of facilitating a legislative solution that is both constitutionally and democratically acceptable. If the court says nothing, or very little, about what principles guide its decision, and simply throws the issue back to legislatures without explanation, legislatures may respond with solutions that courts must repeatedly strike down, and that experience may well exacerbate political tensions and lead to backlash effects. Instead of hiding the ball in a minimalist decision, courts should explain why the constitutional rights they seek to protect are important, and what they will be looking for when they review the legislature's work.

Under my approach, the Court would have done some something closer to what it did in the death penalty cases, which were decided around the same time. It would strike down old abortion laws and require the states to create new ones guaranteeing the two rights to abortion. Although the right to life movement was gathering steam before Roe was decided, there was still a strong push for abortion reform throughout the country. In the political climate of the early 1970's, most states would probably have guaranteed a basic right to abortion perhaps averaging around twenty weeks, halfway through the term of a normal pregnancy, along with a host of various regulations and exceptions. For example, in February 1972, almost a year before Roe was decided, the American Bar Association had advocated repeal of abortion laws up to the first twenty weeks, midway between the end of the first and second trimesters. We should not overestimate the degree of liberalization that the 1970's would have produced without Roe, particularly as the right-to-life movement was gathering steam. New abortion laws would probably not have given women guarantees as extensive as those which originally appeared in Roe and Doe v. Bolton.

After many states passed new abortion laws and created legislative records justifying them, the Supreme Court would be able to evaluate legislative decisions and fix upon a minimum set of standards for outlier jurisdictions. Because it would be reviewing comprehensive schemes that legislatures themselves had devised, the Court would be exercising less of a traditionally legislative and more of a traditionally judicial role. The legislative decisions would also possess a greater democratic legitimacy than a one-size-fits-all requirement imposed by a court. This would not end all controversies over abortion, but it would have given the abortion right a firmer, more democratic grounding than the actual decision in Roe did.

To be sure, a small number of states would have insisted on virtually no abortion rights, or would have made spurious determinations that a very short time- say three weeks-- was all the time that women needed to decide. However, precisely because these states would be outliers, it would be far easier for the Court to hold their restrictions unconstitutional. Instead of the Court choosing its own line and then imposing it on all of the states simultaneously, the Court could point to the laws created by the majority of states as evidence that these outlier states were not protecting women's rights adequately. In addition, it would be far easier for the Court to show that these legislatures had not seriously engaged with the substantive guidelines the Court set out in its initial opinion- to give women a right to protect their health and life throughout the pregnancy and give women a reasonable time and a fair and realistic opportunity to decide whether or not to take on the obligations of motherhood.

Finally, by leaving the length of the second right up to legislatures in the first instance, the Court would, ironically, have empowered defenders of abortion rights far more than it did by imposing a single national solution in Roe v. Wade. Roe's trimester formula- which effectively imposed a model abortion statute on the entire country-- simultaneously gave pro-choice forces a enormous victory and seriously demobilized them. Faced with mounting pro-life opposition, defenders of abortion rights repeatedly diverted resources to litigation because they assumed that the federal judiciary would ultimately back them up. But if courts had guaranteed only the basic outlines of a right to abortion and left many of the details of abortion regulation open, pro-choice advocates would have been forced to devote their resources to gaining public support for abortion rights and forging political compromises that would win in legislatures and would appeal to a broad segment of the American public. Having to fight the details of abortion regulation in the political process would probably have helped secure both the democratic character and the democratic legitimacy of abortion rights.
Posted 8:05 AM by JB [link]