Balkinization: The Consquences of a Freedom of Choice Act

The Consquences of a Freedom of Choice Act

Over at Bench Memos, Rick Garnett makes two points about the effect of a potential Obama Presidency on abortion politics that push in opposite directions.

On the one hand, Rick argues that pro-life advocates (and in particular Doug Kmiec) should not support Obama because it is important to overturn Roe v. Wade. "The problem with Roe," Rick explains, "is not just that . . . it facilitates wrong choices by private persons; it is also, and fundamentally, at odds with our constitutional structure and with democratic self-government." That is because the decision takes the issue from democratically elected legislatures and prevents majorities from protecting unborn life by criminalizing abortion. Rick does not think that overturning Roe would end abortion in American, but it would give democratically elected legislatures a chance to express their views on whether or not to criminalize abortion.

On the other hand, Rick predicts (whether correctly or not), if Obama is elected, Congress "will certainly" pass the Freedom of Choice Act, which would nationally guarantee abortion rights and ratify the result in Roe as a matter of statutory law. (I don't think FOCA "will certainly" pass, for it takes 60 votes to pass anything in the Senate, but the chances would probably increase).

Rick's arguments are consistent, but there is an important tension between them. The best way of seeing the tension is to look at the history of Brown v. Board of Education.

Brown was widely regarded as controversial when first decided, precisely because it cut off choice in individual states about whether to require segregation. Many critics of Brown, like Herbert Wechsler, argued that although they may have supported the result, Brown did great damage to our constitutional system and to the system of judicial review.

These debates about Brown's legitimacy and its cutting off democratic choices largely ended after Congress passed Title VI of the 1964 Civil Rights Act which effectively ratified Brown. As Archibald Cox put it, the Civil Rights Act made Brown "more firmly law."

My suspicion is that if Rick is correct and Congress did pass a Freedom of Choice Act, procedural objections to Roe of the sort Rick has offered would look far less powerful to most Americans. *Moral* objections to abortion would no doubt continue, but it would be hard to say that the people's elected representatives had not made a clear decision to protect women's right to abortions.

What this would mean in practice, I suspect, is that the fight over abortion would change significantly. The struggle would move to other arenas. Attempts to use moral suasion to persuade women not to choose abortions would continue in civil society. More importantly, there might be increased support on all sides for government programs that would reduce the total number of abortions in America, including (1) increased support for contraception, (2) reducing the stigma of adoption and encouraging adoption, and (3) increased health benefits, child care support, and subsidized day care for single women and families to encourage them to keep and raise children in cases of unplanned pregnancies.

Many pro-choice advocates, including myself, would support all three types of initiatives. Many pro-life advocates would support them too, although some parts of the pro-life coalition would not be happy about government funding of contraception and day care and might still oppose them vigorously.

The key point, however, is that a Freedom of Choice Act would significantly change the political playing field concerning family policy in the United States. Family policy would no longer be inflected (if not dominated) by the debate over the democratic legitimacy of Roe v. Wade. It would create a space for a different kind of discussion, one that both pro-choice and pro-life advocates might find more rewarding.

Posted 12:10 PM by JB [link]

Comments:

"at odds with our constitutional structure and with democratic self-government ... because the decision takes the issue from democratically elected legislatures"

Has a more incorrect statement ever been made? The entire raison d'etre of the Constitution is precisely to remove certain decisions from democratically elected legislatures (i.e., to constrain unbridled majoritarianism).

# posted by

KipEsquire : 12:56 PM

The "Freedom of Choice Act" would essentially guarantee abortion throughout a pregnancy because the legislation states that no government can prohibit an abortion where the continued pregnancy offers any risk at all to the health of the mother. The legislation reinforces this by noting that the present nearly non-existent restrictions on abortion somehow threaten the health of women.

Not only would this likely fail to obtain 60 votes in the Senate, I doubt the House majority of GOP and Blue Dog Dems would vote for this radical proposal if they want to be re-elected.

If this legislation did somehow pass, rather than legitimizing Roe, the Congress which enacted it would be looking at a 2010 election very similar to 1994.

# posted by

Bart DePalma : 1:00 PM

kipesquire said...

"at odds with our constitutional structure and with democratic self-government ... because the decision takes the issue from democratically elected legislatures"

Has a more incorrect statement ever been made? The entire raison d'etre of the Constitution is precisely to remove certain decisions from democratically elected legislatures (i.e., to constrain unbridled majoritarianism).

If a right to abortion existed in the Constitution, you might have a point. It does not and thus the unelected Court's Roe decision legislating such right under the guise of judicial review is indeed at odds with the separation of powers in the Constitution and our right of self government.

# posted by

Bart DePalma : 1:05 PM

Kipesquire's quotation begins with Garnett's words--"at odds with our constitutional structure and with democratic self-government"--but ends with Balkin's gloss on it--"because the decision takes the issue from democratically elected legislatures." I don't think Garnett would say that Roe is at odds with democratic self-government merely because it takes a decision away from legislatures, but because it does so without a plausible basis in the Constitution.

# posted by

Chris : 1:14 PM

I love categorical dismissal of rights based on the assertion that because those rights are not textually demonstrated in the constitution.

"If a right to abortion existed in the Constitution, you might have a point. It does not..."

The ninth amendment exists. And, if we go back to ask the founders about medical procedures that weren't possible when the constitution was written, surprisingly, they will be silent about the issue.

"...thus the unelected Court's Roe decision legislating such right under the guise of judicial review is indeed at odds with the separation of powers in the Constitution and our right of self government."

Where would we be without solid talking points?

Breezing over what kipesquire wrote with those talking points, but not addressing the substance seems a little unseemly.

There is no textually demonstrated fundamental right to educate one's children as one sees fit. Yet, the court seems to have carved that right out of somewhere. They must be an unelected legislature.

# posted by

Politically Lost : 2:48 PM

politically lost said...

I love categorical dismissal of rights based on the assertion that because those rights are not textually demonstrated in the constitution...The ninth amendment exists.

Unlike some other conservatives, I agree that the Ninth Amendment incorporates unenumerated fundamental rights that are long and well established in our law. A right to abortion was never long and well established in our law. At the time of Roe, abortion was largely outlawed. Even the Roe Court declined to go as far as claiming that the Ninth Amendment protected abortion as a fundamental right and instead invented a privacy doctrine.

# posted by

Bart DePalma : 4:15 PM

At the time of Roe, abortion was largely outlawed.

What was the legal status of abortion at the time the Constitution was signed?

# posted by

PMS_CC : 5:19 PM

pms:

Surgical abortion did not exist a that time.

# posted by

Bart DePalma : 5:49 PM

Surgical abortion did not exist a that time.

Great. But abortion surely existed. What was the legal status of abortion at that time?

# posted by

PMS_CC : 6:23 PM

I agree that the Ninth Amendment incorporates unenumerated fundamental rights that are long and well established in our law.

Therein lies the rub. Rights that are long and well established seems to be the divide in which many can hang their hat.

I will not try to categorize (i.e. give an ideological bent on which I rely to interpret the constitution) myself, however just express the frustration experienced in looking at the court's opinions over time; in general where fundamental rights are concerned. I detect a severe distaste for "finding" rights in the constitution. And, I've never understood that impulse. Probably because these fundamental rights usually are tied up in things that have to do with the human body. If sticking foreign objects or other peoples appendages in my rectum (provided, of course, they consent and are capable of consent) I see nothing in the constitution that allows the state to prohibit that. However, it has been long and well established in our law that the state could criminalize that conduct.

So, what use is that analysis; the long and well established test? And, why the fear of finding those kinds of rights? The fear is essentially generated by religious fervor. Take away that influence and fundamental rights expand. Pursuit of happiness with the maximum of individual rights would appear to be the ultimate goal of the constitution, yet our court has consistently put forth a fear of those rights in their decisions. The right to be left alone in one's bedroom and within one's body has been a long and well established monster to those that fear that type of expression.

Why should that be of any consideration when interpreting the constitution?

# posted by

Politically Lost : 7:07 PM

But abortion surely existed. What was the legal status of abortion at that time?

Until quickening, it was not a felony. That's off memory of the common law.

# posted by

Mark Field : 7:08 PM

pms:

Abortion at that time existed in the form of herbs and drugs inducing miscarriage, but was extremely rare. It was certainly not considered to be a right and was too rare to bother criminalizing.

# posted by

Bart DePalma : 8:07 PM

Abortion at that time existed in the form of herbs and drugs inducing miscarriage, but was extremely rare. It was certainly not considered to be a right and was too rare to bother criminalizing.

I agree that it was not considered a right (it was legal, though), but there's no basis to say it was "rare". We know that (1) abortion was common enough that lots of great philosophers over several millenia concerned themselves with the topic, and (2) in an era where there were far fewer options for preventing pregnancies, unplanned pregnancies were common and all throughout recent history a significant percentage of unplanned pregancies have been dealt with through abortion whether legal or illegal. We also know that in less developed countries, non-surgical abortions continue at quite significant rates.

So there's certainly no reason to assume that abortions were rare. I am not going to opine as to how common they were, but common sense would tell us that they occurred and with some significant frequency.

# posted by

Dilan : 8:18 PM

Abortion "was extremely rare".

I don't believe you have a shred of evidence for this assertion. Miscarriages were certainly far more common than today, and who can say which of those were "voluntary"?

"It was certainly not considered to be a right and was too rare to bother criminalizing."

On the contrary, since it was not considered separate from miscarriage before "quickening" -- there was no issue of "right" at all.

As for your remarkable statement about it not being worth criminalizing, are you channeling some Hammurabi or Solon now?

If any lawgiver of old left a note (perhaps scribbled in a margin): "inducing miscarriage -- immoral, against God's law, but not worth the effort."

Do share your extraordinary sources with us.

# posted by

C2H50H : 8:21 PM

Why would the Freedom of Choice Act certainly pass now when it did not during the Clinton Administration?

I also am unclear if it would pass muster under current federalist jurisprudence.

"give democratically elected legislatures a chance to express their views on whether or not to criminalize abortion"

People can do that now. Oh, by "views" you mean actually criminalize something a majority of the population (rightly) deems a fundamental private choice with clear religious overtones that affects equal protection and more diffuse rights of constitutional caliber?*

[A law against abortion will not be merely symbolic. Its effects might be somewhat minor, more so in certain areas of the country, but it will have real effect on real girls and women, and real embryos and fetuses.]

The fact the SC is various respects (see hate speech) "facilitates" "wrong" choices (says who?) only matters if they have no justification in so doing. Likewise, in our country "democratic self-government" includes protecting various rights of people to govern themselves.

[Rick Garnett begs the question concerning "unborn children" when many think this is a individual matter of conscience, not a question to be decided by majority vote

Some dispute some of its details, but Roe did after all spend some time on history of abortion. The first statutory anti-abortion laws came into play in this country in the early 1800s. The "quickening" line btw is rooted in historical understandings that have passed us by in many ways.

But, in 1789, early abortions were not banned in this country. Likewise, putting aside 14A concerns (equality and control over family life vs. slavery), control of "private" choices was a core "liberal" sentiment. Matters of religion, family life, and so forth were not for the state.

A republic, a "public thing," had to have a corresponding "private" and if anything, anti-gov't sentiments were more then than now, before the age of big government. Thus, control of fertility and such fits into the Ninth Amendment pretty well.

---

* There is a book out concerning the twelve or whatever worst SC cases decided. Those that upheld New Deals legislation, worst. Interferes with individual economic choice.

Roe? Not worst, but wrongly decided, it is a policy choice. Women's body, policy. Economic choice, constitutional bedrock.

# posted by

Joe : 9:22 PM

I wonder if the Title VI-Brown-FOCA-Roe analogy works as well in light of Boerne. I could imagine Kennedy saying, well, I like some abortion liberty, as a constitutional matter, but Congress can't give any more under section 5.

# posted by

Chris : 10:04 PM

and was too rare to bother criminalizing.

# posted by Bart DePalma : 8:07 PM

I'm looking forward to seeing the basis for this assertion.

# posted by

Bartbuster : 10:08 PM

"Oh, by "views" you mean actually criminalize something a majority of the population (rightly) deems a fundamental private choice"

That's a remarkably dishonest interpretation of polls showing that the majority is in favor of freedom to abort in early pregnancy, and opposed to it in late pregnancy, barring genuine medical cause.

The problem with Roe, aside from the basic constitutional infirmity, is that it, and subsequent cases, imposed judicially a more extensive 'right to abort' than the public could ever support, just short of Singerite in it's extent. The very reasonable trimester scheme the Court supplied in Roe was taken away again mere hours later with Doe.

I expect that were abortion once again a legislative matter, early abortions would be available darned near everywhere, but restrictions substantially more than the courts will allow would be widely supported by the voting public.

# posted by

Brett : 9:13 AM

That's a remarkably dishonest interpretation of polls showing that the majority is in favor of freedom to abort in early pregnancy, and opposed to it in late pregnancy, barring genuine medical cause.

It is "remarkably dishonest" to say something you say is true? About 90% of abortions in this country is done in the first trimester, many more shortly thereafter.

The anti-abortion forces don't want to only ban "late" abortions. If so, they wouldn't really be THAT "anti" given the reality of the situation.

Those "late" tend to be special cases that a majority also accepts including determinations by ammino of fetal deformity (some don't abort; few are like Palin & want to make the choice impossible) or serious threats to women's health.

[Some involve teens. Current law upholds notification and consent of parent provisions (see Casey), so we are left with banning second trimester abortions for them, some second for the very reason n/c laws delay things. The public as a whole are not big supporters of forced pregnancy for 13-15s, etc.]

So, where is this majority support for second trimester bans? Or does "early" mean two months? Or, maybe it's the "genuine medical cause," which Vuitch defined broadly. I'm unsure of all this proof "late" abortions have been done for "fake" medical causes.

So, what exactly are you criticizing me for? When you call me a liar, a "remarkable" one in fact, you really should have some leg to stand on.

is that it, and subsequent cases, imposed judicially a more extensive 'right to abort' than the public could ever support

That is, besides in those states where they did by legislative action, including NY.

just short of Singerite in it's extent.

i'm unsure if Singer (ad hominem alert) would support making it illegal in the third trimester; nor if the public really wants to remove the health exception that is statistically trivial in practice, one found in most pre-Roe laws anyways. See, e.g., U.S. v. Vuitch.

The very reasonable trimester scheme the Court supplied in Roe was taken away again mere hours later with Doe.

no it wasn't, see, e.g., section IV, talking about Georgia's physician scheme; anyway, the trimester scheme was just a doctrinal test akin to the Lemon test in establishment clause jurisprudence; in both cases, the underlining principle is what is at stake here.

I expect that were abortion once again a legislative matter, early abortions would be available darned near everywhere

They were "available" in various ways before Roe, including legally thru some discriminatory, often ad hoc methods. But, esp. with modern medical knowledge (though abortion pills vs. surgical abortion leave something to be desired), this is likely true to some extent.

All the same, especially since even now, it is hard to obtain an abortion in various areas, the fact a law "only" affects a small amount (read potentially millions, which translates to mere percentage points of the US population) matters. After all, getting pot is fairly easy for many, but people suffering from diseases still have trouble all the same when they want to partake.

but restrictions substantially more than the courts will allow would be widely supported by the voting public

Casey etc.already allowed more regulations, including parental notification, waiting periods, irrational 'partial birth' abortion bans (abortions still allowed, just unsafer for some women) and so forth.

Some of these regulations are unsound in law and policy, but I'm unsure if we really need loads more.

And, to the degree the voting public supports discriminatory and otherwise unconstitutional laws because they aren't affect personally or whatever, the fact a majority might vote for the law doesn't justify them either.

But, from Justice White's pretty pathetic dissent on, unprincipled vitriol has been shown on the "Roe is a travesty" side pretty consistently. This includes many of the lawyers Brett is no big fan of, so legal knowledge isn't really a determining factor either.

# posted by

Joe : 10:49 AM

True friendship comes when the silence between two people is comfortable.
Agen Judi Online Terpercaya

# posted by

Unknown : 11:37 AM