Balkinization  

Thursday, January 17, 2013

“Constitutional Frameworks” at Roe’s 40th Anniversary

Guest Blogger

Dawn Johnsen


Forty years ago the seven-Justice majority in Roe v. Wade held that “the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action” protected the fundamental right of a woman to decide “whether or not to terminate a pregnancy.” Ever since, constitutional scholars and commentators of all stripes have critiqued and criticized the Court’s reasoning, in particular its substantive due process approach to reproductive liberty. Some among Roe’s critics strongly support the essential right the Court protected but find the constitutional protection more appropriately rooted elsewhere in the Constitution – for example, in the Fourteenth Amendment’s guarantees of equal protection or privileges or immunities. 
            Such alternative (or supplemental) theorizing at its best – as in recent works by Reva Siegel and Jack Balkin – enriches understanding of the constitutionality of governmental restrictions on women’s decisions about and access to abortion.  In fact, I sought to do the same in coauthoring an amicus brief in the Court’s 1989 Webster case on behalf of “Seventy-seven Organizations Committed to Women’s Equality.” Some progressive criticism of Roe, however, risks unintentionally undermining judicial protection of women’s reproductive liberty. I offer here three suggestions for reviewing Roe on its fortieth anniversary.

First, give Roe its due.  Extraordinary scrutiny of Roe from the left as well as the right is not unwarranted given its subject, but some criticism is unfairly and unhelpfully simplistic and ahistorical. For example, it is implausible that back in 1973 the Court could have rested on an equal protection ground, or even a notion of liberty more infused with equality values, at a time when the Court had not yet found that sex discrimination triggers heightened judicial scrutiny and even the most liberal Justices were reluctant to hire women as law clerks.
Instead, the Roe Court described as follows the harms “the State would impose upon the pregnant woman by denying” her the right to make this personal decision:
Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it.
Not precisely how the harms might best be articulated today, with the benefit of four decades of advances in understandings about women’s equality (transformations to which the Court contributed).  But not far off. 
During the two decades between Roe and Casey, the Justices elaborated on the aspects of liberty noted in this Roe passage: a woman’s right to bodily integrity, through the control of her physical person and health, and her right to decisionmaking autonomy on the vital life decision whether and when to have children.  The Justices also increasingly recognized the sex equality harms of government restrictions on childbearing decisions, with the Court stating in its 1986 Thornburgh decision that the Constitution’s promise of a sphere of individual liberty “extends to women as well as men” and in the 1992 Casey joint opinion that “[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”
Second, constitutional protections need not rest solely on a single textual guarantee or constitutional value. This is a concept familiar to constitutional scholars, but too easily lost in political rhetoric that exaggerates the relevance that the word privacy does not appear in the constitutional text, while ignoring that liberty and equal protection do.  (Neither, by the way, does “separation of powers” or “freedom of association,” constitutional values extolled by the ideological right.) The Roe Court itself noted a possible alternative ground for the right:  without disapproval, it noted the district court had relied upon “the Ninth Amendment’s reservation of rights to the people,” in a passage that intimated that basis was reasonable and not unrelated to the Court’s interpretation of Fourteenth Amendment liberty.
Whether framed as an issue of women’s equality or implicit in the concept of ordered liberty, Roe properly held that the government’s role in our constitutional order does not encompass dictating the timing and circumstances under which individuals must bear children. A related point: our tradition of constitutional interpretation properly values respect for precedent and stability in the law.  To the extent the Court accepts arguments for enhanced protections for reproductive and sexual autonomy based on constitutional values of equality and dignity, it very likely will continue to situate those protections in liberty.
Finally, the debate over the proper constitutional analysis should center on what currently is most at issue, which is not the outright criminalization of abortion from the moment of conception, a la Texas in Roe.  Most at issue in 2013 are the hundreds of governmental restrictions that cumulatively and increasingly make abortion services far less available. The threat to women’s equality is readily apparent, including to the Justices in Casey, when a restriction takes the form of forcing a woman against her judgment and will to notify her husband before she may obtain an abortion. The threat to equality and dignity also seems quite clear when the government requires an intra-vaginal ultrasound, or political candidates oppose rape exceptions to abortion restrictions including on the absurd assertion that rape cannot cause pregnancy.
But how about a twenty-four hour waiting period that in fact requires an impoverished woman to make two long-distance trips, a week apart, to the only abortion provider in the state? Or reasonable-sounding clinic regulations that in fact are designed to shut down every provider of abortion services in the state? Or a state prohibition on private insurance providers including coverage for abortion services? Are these restrictions properly viewed as threats to women’s liberty, equality or dignity – or all three? These and more are the current forms of governmental interference, in furtherance of the sometimes-admitted goal of making abortion services unavailable, state-by-state, just as surely as criminal bans prior to Roe v. Wade.
The central question today seems not the textual source of constitutional protection – which to me is best viewed as a fundamental liberty informed by what we now appreciate women’s equality entails – but the proper standard of judicial review for evaluating abortion restrictions. Roe held that any significant governmental interference with women’s reproductive decisions merits lifting the usual veil of legislative deference and careful scrutiny of any governmental assertion of an overriding interest in protecting potential embryonic and fetal life. Specifically, the Court adopted strict scrutiny, a familiar, highly protective test otherwise used in evaluating both governmental interference with fundamental rights and governmental use of suspect classifications. 
Casey overruled that part of Roe and substituted an untested, ill-defined, but clearly less protective “undue burden” test, which essentially asks whether the governmental restriction operates to impose a substantial obstacle on a woman’s ability ultimately to make her own decision.  That seems a terribly odd and inadequate formulation that ignores our country’s pre-Roe history, which establishes that women will go to great lengths – break laws and even risk death – to effectuate their own childbearing decisions.  
Looking around the world, the Guttmacher Institute recently found “there is little relationship between the legal status of abortion and how often it occurs. Some of the highest abortion rates in the world are in Latin America and Africa, where abortion is highly restricted in almost every country—but where many women have unintended pregnancies.” Worldwide, 47,000 women die each year from complications from unsafe abortions, largely because they lack safe alternatives to prevent and terminate unintended pregnancies.  The government does have an important role here, in empowering women to avoid unintended pregnancy – and unlike restricting abortion, that works.
Most American women want children, but they typically want two children, not the ten to fifteen they would bear if the government denied them the ability to control their own reproduction. (Some more basic facts: the typical American woman spends about thirty years avoiding pregnancy and most women who have abortions already are mothers, are in their twenties, describe themselves as religiously affiliated, are disproportionately poor, and lack adequate access to contraception. One in three women will have an abortion by age forty-five, a rate that can be effectively reduced through making contraception widely available.)
A fitting conclusion to this post may be to relate an email I received while writing it, from the Indiana Maurer School of Law’s chapter of Law Students for Reproductive Justice. The student leaders have designed a new T-Shirt, which will declare: "No woman can call herself free who does not own and control her own body." --Margaret Sanger 
Dawn Johnsen is Walter W. Foskett Professor Of Law at Mauer School of Law at Indiana University, Bloomington. You can reach him/her by email at djohnsen at indiana.edu


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