What Roe v. Wade Should Have Said

JB

Acting as the book’s “Chief Justice,” I wrote an opinion announcing the judgment (but not the opinion) of the Court; It strikes down the Texas and Georgia abortion statutes in Roe and Doe. Seven contributors upheld some form of the abortion right, three did not, and one contributor, my colleague Akhil Amar, struck down only the Texas abortion statute but not the 1968 Georgia statute in Doe v. Bolton. None of the contributors adopted Roe’s original trimester framework. Here is an except from the introduction talking about some of the contributors' different approaches to Roe. This is only a summary; if you want the actual reasoning you should read the book.

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My opinion argues that abortion statutes violate both women’s liberty and their equality. Restrictions on abortion compel women to become mothers, with all of the social expectations and duties that come with motherhood. Whether fairly or not, women in American society still bear most of the responsibility for childcare. They are expected to make sacrifices for their children and they feel most of the brunt of social condemnation if their children are not properly cared for. Moreover, because of the strong social expectations about the duties of motherhood, women suffer stigma and shame if they give their children up for adoption. The right to abortion is the right to have a reasonable time to decide whether to take on the responsibilities of motherhood. Deciding how long to give women to make that decision should be determined by legislatures in the first instance: “[L]egislatures must specify a period of time during pregnancy in which women may obtain medically safe abortions.” After this point, “legislatures may restrict or even completely prohibit abortions, except where it is necessary, in the judgment of medical professionals, to preserve the life or health of the mother.” The basic idea behind this formulation is that the right to abortion has two components: Women have a right to decide whether or not to become parents, so the state must afford them an appropriate period of time in which to make that decision. But women also have a right not to be forced by the state to sacrifice their life or health to bear children, and this right continues throughout the pregnancy. My opinion rejects the rigid trimester system in Roe. Instead, courts should let states try out different frameworks for abortion regulation. Over time courts should then judge the validity of these laws based on whether they give women a reasonable time to decide and a “fair and realistic chance” to end their pregnancy.

Reva Siegel [who writes a concurring opinion] argues that the proper basis of the abortion right is women’s equality, and that the Court’s heightened scrutiny for laws imposing sex discrimination should have begun with Roe v. Wade. Abortion is a constitutional right necessary to secure women’s equal citizenship. Siegel argues that exemptions in abortion statutes like those in Roe and Doe demonstrate, often in quite telling ways, that abortion restrictions are deeply tied to stereotypical views about the sexes and about the duties of women: “Whatever respect for unborn life abortion laws express,” Siegel notes, “state criminal laws have never valued unborn life in the way they value born life.” Instead, states “have used the criminal law to coerce and intimidate women into performing the work of motherhood.” “Abortion laws do not treat women as murderers, but as mothers: citizens who exist for the purpose of rearing children; citizens who are expected to perform the work of parenting as dependents and nonparticipants in the citizenship activities in which men are engaged.” Siegel bases her opinion on the equality arguments offered in amicus briefs submitted to the Supreme Court by various women’s groups. These briefs grounded the abortion right in what we would today call an antisubordination model of equality law. Siegel’s answer to what Roe should have said is to give voice to the lawyers who were part of the legal vanguard of the second wave of American feminism, and whose arguments were largely ignored by the courts.

Mark Tushnet interpreted the question of what Roe should have differently from all of the other participants: He asked what were the best arguments that could have been generated by someone who could plausibly have been a Justice on the Supreme Court in 1973. The men who decided Roe (there would not be a woman Justice for almost a decade) did not understand the connection between abortion rights and the Equal Protection Clause. In his view, Justice Douglas’ concurrence in Doe (which was drafted in conversation with Justice Brennan), was the best that the Court probably could have done under the circumstances, and it forms the model for Tushnet’s [concurring] opinion.

Four other participants, Anita Allen, Robin West, Jed Rubenfeld, and Cass Sunstein, concur in the judgment. This means that although they agree that the Texas and Georgia statutes criminalizing abortion are unconstitutional, they do so for different reasons.

Anita Allen grounds her opinion on women’s procreative liberty protected by the Due Process Clause of the Fourteenth Amendment. She argues that because laws compelling women to abort their pregnancies would clearly be unconstitutional, so too should be laws preventing abortion: “Like the right to prevent pregnancy, the right to terminate pregnancy is a fundamental right.”

Jed Rubenfeld argues that the constitutional right to privacy is part of a more general prohibition against totalitarian policies that take over people’s private lives and impose a specific occupation on them by force of law. Restrictions on abortion are unconstitutional because they conscript women against their will and force them “to carry out a specific, sustained, long-term, life-altering and life-occupying course of conduct.”

Robin West argues that restrictions on abortion violate both women’s liberty and their equality. However, she does not base her argument on either sex discrimination or the right of privacy. Rather, she argues that restrictions on abortion impose duties of good samaritanship on pregnant women that states impose on no other persons. Moreover, restrictions on abortion prevent pregnant women from using self-help to avoid the consequences of pregnancies imposed on them in cases of marital rape and coerced sex. Although West believes that the courts should protect a basic abortion right, courts cannot deal with the larger structural problems of sex inequality in the United States. “Mothering children, as we presently socially construct that work,” West argues, “is incompatible with the basic rights and responsibilities of citizenship,” and this “incompatibility has constitutional implications.” But merely striking down abortion laws is “a pathetically inadequate remedy.” Emphasizing Congress’s duty to interpret and enforce the Fourteenth Amendment independent of the courts, West argues that Congress is the body best able to pass legislation that protects women’s equality and secures their equal citizenship.

Yet another way of answering the question of what Roe should have said focuses not on the best doctrinal or theoretical justifications for Roe but on what was the best way for the Court to perform its institutional role. Cass Sunstein has advanced a theory of judicial minimalism; he argues that in courts should usually decide cases on narrow grounds and refrain from offering comprehensive and controversial justifications for their decisions. By leaving things undecided, and underspecifying the grounds for decision, courts can act as catalysts for democratic deliberation and avoid provoking an unnecessary political backlash. His opinion decides Roe and Doe on the ground that the abortion statutes were “overbroad,” i.e., that they abridged too much constitutionally protected liberty, without specifying the exact contours of the abortion right.

Akhil Amar concurs in part and dissents in part in Roe, and dissents in Doe. He argues that the Texas statute in Roe is unconstitutional because it was passed before women gained the right to vote. The Georgia abortion statute in Doe, passed in 1968, is another matter entirely, and Amar believes that the Court should have abstained from considering it, leaving the interpretation of the statute to the Georgia courts.

Jeffrey Rosen dissents from both Roe and Doe. Like Sunstein, Rosen also focuses on the Court’s proper institutional role, but he argues that the question of abortion rights should be left to legislatures. He takes up many of the arguments made against Roe by John Hart Ely in a famous law review article in 1973. In Rosen’s view, the Court should have stayed out of controversial questions like abortion, because the right to privacy has no basis in the constitution’s text, structure, and history, and the Court’s previous precedents do not require extension of the right to privacy to abortion. Instead of holding that abortion was constitutionally protected, the Court should have allowed the political process to work out the issue of abortion rights. Rosen notes that abortion reform was just beginning in the early 1970's, and in his opinion, written from the standpoint of 1973, he predicts that the Court’s hasty and ill-considered intervention will only cause severe political problems both for the protection of abortion rights and progressive causes generally in the years to come.

Objections to Roe generally fall into two categories, procedural and moral. Procedural objections argue that the question of abortion rights should have been left to the political process. Moral objections argue that the right to abortion is a substantive wrong that should not be elevated to a constitutional right. Rosen’s objections to Roe are largely procedural. Teresa Stanton Collett and Michael Stokes Paulsen offer the moral case against Roe. Roe, Collett argues, is the product of a misguided radical individualism that undermines women’s liberty and equality. Making abortion freely available will allow men to escape responsibility for sex and parenthood, while “artificial birth control and abortion . . . treat women’s bodies as unatural: something to be altered to conform to the male model.” “I refuse to accept, Collett declares, “that women must deny their fertility and slay their children in order to obtain equal access to the marketplace and the public square.”

Michael Stokes Paulsen offers a forthrightly pro-life opinion, arguing that abortion is deeply immoral and that the Court has severely damaged its authority by recognizing it as a fundamental right. “Abortion,” he insists, “does not destroy potential life. Abortion kills a living human being.” Paulsen writes in a prophetic voice, denouncing the evils of abortion and condemning the Court for having been complicit in the destruction of so many innocent human lives. Paulsen calls on the conscience of Americans to abandon what he regards as the Court’s most lawless and immoral opinion, or, as he describes it, “the most awful human atrocity inflicted by the Court in our Nation’s history.”

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As you can tell from this summary, the participants have very different and strongly held views about about What Roe v. Wade Should Have Said. If you are interested in a introduction to the constitutional issues in Roe, and to some of the latest thinking on the subject, this book is a good place to start.