an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
William R. LaFleur began his 1992 book-- Liquid Life: Abortion and Buddhism in Japan--by describing his visits to Buddhist temples near the towns of Kamakura and Chichibu. During an extended stay in Japan in the spring and summer of 2008, I made a point of visiting the same two sites. I wanted to see these unique places for myself. There is nothing quite like them in the United States. To be sure, one commonly finds graves of infants whose lives were tragically short. But here in the United States, one does not find whole memorial gardens decorated with toys, treats and bibbed deities dedicated wholly to stillborn babies, miscarried pregnancies and aborted fetuses.
The tucked away little memorial gardens at Kamakura’s Hase-dera Temple used for that purpose, and the splashy, huge, mountain-side memorial park for aborted fetuses outside Chichibu, are especially enthralling to an American interested in the ethics of abortion. Imagine tiered rows of eighteen to 36 inch stone statutes of a happy-faced diety the Japanese called Jizo, each festooned with his own colorful bib, plastic flowers, and a pinwheel toy, each representing a lost child. There is no shortage of places to go in Japan to see evidence both of the modern rite for the lost unborn, mizuko riyo and more traditional practices of remembrance centered around water babies.
There was, for example, a memorial garden of this sort on a hill on the grounds of the wildly popular Kyoto tourist attraction, Kiyamizu. And you can see bibbed Jizos, one or two at a time in little shrines all around Tokyo, if you walk the streets often enough. A temple in the Taito-ku district of Tokyo, claims to have some 80,000 Jizos erected for lost babies. I tried to count the ancient mossy stone statuettes when I was there, but accepted that the number had to be in the many thousands.
The omnipresence of Jizo in Japan, combined with the country’s easy acceptance of abortion as a method of birth control feels like a cultural contradiction. If LaFleur is correct, Jizo and the mizuko riyo rite have made it possible for the Japanese to utilize abortion freely, without extremes of moral and political controversy. Anxious to have a comparative conversation with the Japanese lawyers and about abortion law, I delivered the following public lecture at Waseda University School of Law in June. The lecture attempts to pull together all of my recent thoughts and past scholarship into a unified perspective for a foreign audience. I think you will agree that the U.S. experience with abortion rights takes on a curious texture when summarized and packaged for outsiders.
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In this talk, I will try to do four things. First, I will briefly describe the major role the concept of privacy plays in U.S. constitutional law. Second, I will describe the role the concept of privacy has played in the Supreme Court cases establishing reproductive freedom for American women since the 1960s. Third, I will explain that constitutional privacy doctrines are not functioning today as well as they once did to foster women’s right to independent reproductive decision-making. Fourth, and finally, I will assert that in fact, no constitutional doctrines are preventing our Supreme Court from turning its back on women. Some American legal scholars and activists committed to reproductive rights for women, but frustrated with the direction of U.S. constitutional law are searching for alternative frameworks for defending access to birth control and abortion. The international human rights framework appears to hold special appeal.
My basic message tonight is this: Because of its constitutional law, the U.S. was once a shining example of progressive reproductive rights policy. In the 1960’s 1970s, 1980s and 1990s, we could speak of women’s health, child welfare, social needs, and economic necessity. However, we could also and importantly speak with pride of individual constitutional rights of privacy—of choice about our bodies and lives. We spoke this way in recognition of the historic connection between our inferior status as women and compulsory childbearing. We were left out of the workplace and public life because men said we lacked intellect, stamina, reliability and control over our reproductive capacities.
American women were encouraged by the spirit of constitutional privacy discourse to think of themselves as competent to make responsible, informed choices about pregnancy. But now the tide has turned. Paternalism and maternalism, both with surprisingly old-fashioned, traditional, 19th century overtones, are re-entering the discourse of American constitutional law. I believe women’s freedom and equality are therefore at risk. And I support feminists in America who believe it may be time to focus less on the internal dynamics of our own judicial system and more on an international human rights movement, which regards womens reproductive freedom as a critical entitlement, universally.
1. Privacy in U.S. Constitutional Law
The word “privacy” does not appear in the U.S. constitution. It is not in the original Articles dating back to the 1780’s that define the structure of our government. Nor does it appear in any of the 27 Amendments that define the rights of individuals against state and federal government. Yet, the absence of the word “privacy” from the Constitution has not prevented American judges from articulating an extensive set of constitutional “privacy” doctrines. Comparative law scholars are sometimes surprised by the broad, expansive use of the concept of privacy. Privacy sometimes means restricted access to people and data. At other times, such as when speaking of abortion and birth control rights, it means limits on government regulation of personal decision-making.
Justices interpreting the Fourth Amendment have determined that a right to a “reasonable expectation of privacy” limits government search and seizure of people and their property. The Court has also held that a fundamental “right of privacy” derived from the 14th Amendment limits government interference with autonomous personal decision-making respecting birth control, abortion, the right to refuse life-saving medical care, and homosexuality.
Constitutional cases say that the First Amendment protects the privacy of conscience and private group association; the Third Amendment protects the privacy of the home; the Fifth Amendment protects the privacy of thought and personality; and the Ninth Amendment reserves unenumerated privacy rights to the people.
Not everyone is pleased by the Court’s expansive use of the concept of privacy. It troubles some lawyers and judges that the Court recognizes a constitutional right to privacy even though no such right is specifically enumerated—written—in the constitution. The Court has been accused (1) of “natural law” jurisprudence (adjudication based on abstract values rather than law); (2) of illegitimate “judicial activism” (judges using their position to further their own personal beliefs); and (3) of “substantive due process” interpretation of the 14th Amendment (misinterpreting the 14th Amendment as granting specific rights as opposed to merely procedural safeguards against official abuse).
The Supreme Court has held that some privacy rights are particularly strong because they are “implicit in the concept of ordered liberty” or “part of the nation’s history and traditions”. Birth control and abortion rights used to be viewed in this light by a majority of our Supreme Court justices.
The Court accordingly once applied a “compelling interest” standard in cases scrutinizing the regulation of abortion. That approach began with Roe v. Wade (in 1973). Under this highest of standards of review, a governmental regulation that interferes with the decision to abort is presumed invalid. To overcome the presumption, the government must show that its regulation constraining personal choice is narrowly drawn to further a legitimate and compelling state interest. Sparing the life of a fetus was not regarded as such an interest.
The Court no longer applies the compelling state interest requirement in abortion cases. Even in the case Planned Parenthood v. Casey (in 1992) which reaffirmed the right to abortion, the Court required only that the government establish that challenged abortion restrictions not “unduly burden” the constitutional right to choose.
2. Feminist Perspectives on Privacy Law
Not all feminist lawyers join me in enthusiastically embracing the Court’s controversial constitutional privacy jurisprudence. Indeed many feminist point out that (1) individualistic ideals of independence and autonomy conflict with ideals of care-taking, compassion, and community that are embraced by women; and (2) the concept of “privacy” once functioned as a barrier to women’s escaping domestic confinement and domestic violence. These are important points.
As you know, in the 19th centuries U.S. women were not legally free. Married women could not own property and women could not vote. They were expected to labor in the private sphere of the home and family. Of course, most women of African descent, like many of my unfortunate ancestors, were slaves until the civil war ended in 1865. But no woman in the U.S., whether African, Native American, European or Asian, was thought suitable for the worlds of business, commerce or politics. Women were supposed to be modest and feminine. They were expected to bear and raise children.
Birth control and abortion were criminalized in the 1800’s. The medical establishment believed abortion was risky and unhealthy. Religious leaders and moralists like Anthony Comstock believed women who could avoid childbirth would become promiscuous before marriage, and adulterous afterwards.
Margaret Sanger bravely attacked the federal law named in honor of Anthony Comstock, which criminalized distributing birth control and abortion-related materials. Her legal challenges, included the 1933 case, United States v. One Package of Japanese Pessaries. Joining forces with friends in Japan, Sanger played an important role in the slow movement for abolishing criminal laws against birth control. Laws criminalizing contraception, and abortion, were struck down in the U.S. by the final third of the 20th century.
The Supreme Court used the idea of a “right to privacy” to get women out of the kitchen, and to give them the capacity to control their fertility. Through controlling their fertility, women are indeed better able to direct their own lives. The Court used a constitutional theory of “privacy” to justify granting women-- first married women and then all women and teenage girls-- a right to use birth control and to obtain medical abortion. Privacy in this context meant freedom from state interference.
Thus while the concept of “privacy” played a role in confining women to traditional roles, it also played a major role in their achieving freedom and equality. I believe feminists should not reject privacy rights. But one does have to be mindful of the risks of concepts, including privacy, which at one time impaired women’s safety and equality.
3. Abortion in America
Between 1.2 and 1.5 million U.S. women obtain abortions each year. Most are aspiration abortions performed by physician specialists in the first 3 months of pregnancy, costing about $350 each. Millions more U.S. women use contraception. (Among the most popular forms of contraception are the birth control pill and the condom). The constitutional status of laws regulating birth control and abortion are thus of great practical importance.
Recognizing women’s “right to privacy,” after 1973, the Supreme Court struck down most laws restricting access to medically safe birth control and abortion. Since 1988, however, the Court has been more willing to uphold abortion restrictions. As a consequence, state legislatures and the federal Congress have enacted laws that make it more difficult for women to receive abortions and certain other birth control services. Some states even allow pharmacists or pharmacies to refuse to fill prescriptions for birth control medication.
Why has this happened? In the United States abortion has been more than a personal moral issue; more than a medical issue; and more than a public health issue. It is also a national political issue.
Influenced by their religions, a small minority of Americans believe it is morally wrong to use any medication, device or procedure to prevent and or to terminate pregnancy. Some Americans believe human life begins “at the moment of conception” (pronuclei fusion) when a sperm fertilizes an egg. Therefore forms of birth control that may prevent the development of a fertilized egg to grow into a baby-- such as “emergency contraceptive pills” or “menstrual extraction” following unplanned sex or rape-- are considered “abortion”, even if no pregnancy has been confirmed.
Americans who oppose abortion on personal moral grounds, sometimes also oppose public law and public policies that permit abortion. Their values are represented in the political arena by so-called ‘pro life” activists.
A majority of Americans believe some or all abortions should be legal; and that whether a woman aborts a pregnancy should be her own choice. The values of those who believe women should be free to obtain abortions are represented by “pro choice” activists.
The amount of “pro life” violence and other serious disturbance caused by abortion protest is down substantially, when compared to the early 1990s. In the 1990s a number of people were killed or injured in shootings and bomb attacks on clinics, patients, nurses and doctors.
Yet even today, abortion clinics are picketed by protesters and receive menacing hate mail. Divisive “pro choice” and “pro life” politics are covered extensively by newspapers, television and other major media in the U.S. Whether a politician is considered “pro life” or “pro choice” can determine whether it is possible to get elected or appointed to public office.
The President of the United States is allowed to nominate justices for the Supreme Court, Presidents Ronald Reagan, George H.W. Bush and President George W. Bush have managed to appoint conservative justices who favor restricting abortion rights, or believe no such right can be grounded in a correct reading of the Constitution.
4. From a Model of Privacy to a Model of Permission
In the context of perpetual, heated political debate, something disturbing is happening to the ideal of abortion privacy that once flourished in the U.S. In the 1990’s, in an article in the Encyclopedia of Bioethics, I categorized abortion regimes found in nations around the world as reflecting one of four models of regulation. Briefly revisiting those models will help me explain the change I see in American law.
I labeled my four models of abortion regulation as follows: (1) the model of prohibition; (2) the model of permission; (3) the model of prescription; and (4) the model of privacy. In countries characterized by the model of prohibition, most or all abortions were prohibited by criminal laws. Ireland was an example of the model of prohibition. In countries characterized by the model of permission, abortions were available to women who met government eligibility criteria and adhered to official procedures. At the time Germany, France and maybe Japan (you tell me) were examples.
In countries characterized by the model of prescription, abortions were not only permitted, but encouraged or required to avoid government penalties. China was my example of the troubling model of prescription. Finally, in countries characterized by the model of privacy, abortions were freely available to women who wished to obtain them, without having to meet eligibility criteria or adhere to detailed government procedures designed to limit access. The United States and Canada were offered as examples of the model of privacy.
While the U.S. used to be a nation in which the model of privacy prevailed, it is my contention that the U.S. is changing into a model of permission regime. In the new regime, although women still have a constitutional right to medically safe abortions, numerous state and federal laws deemed to not “unduly burden” that right in fact interfere with access. Moreover, on the cultural front, women are being encouraged to think of abortion not just as a moral choice--which it certainly is-- but as a bad choice that they should regret, and that may cause them long-term physical and psychological harm.
It is my impression that Japanese women often feel regret and remorse about abortion perhaps reflected in the mizuko kuyo rites. But it is also my impression that your courts and legislatures have not sought to persuade women that abortion is harmful to their welfare.
The discourse of “privacy” can do little to counter the American trends. They must also be fought by exposing maternalism and paternalism for what they are—handmaidens to a by-gone era of male domination. These trends are out of of place with the contemporary status of women as equals of men, a status otherwise emergent in advanced liberal democracies.
5. An Emblem of the New Direction: The Partial Birth Abortion Act
The US Supreme Court has held that state and federal government may enact laws that express a preference for childbearing over abortion. States may assert an interest in protecting life from the moment of conception and may regulate abortion in the interest of women’s health. Abortion “privacy” is being replaced by abortion paternalism.
Against this backdrop, the United States Congress enacted a Partial-Birth Abortion Ban Act, signed into law by President George W. Bush in 2003. As its name suggests, the Act bans “partial birth abortions”. The term “partial-birth abortion” is colloquial for what U.S. physicians call D&X (dilation and extraction). It refers to a type of abortion in which a living fetus, which may be viable (capable of surviving outside the womb), is destroyed after partially passing from the womb through a woman’s dilated cervix. The Act includes an exception for abortions necessary to save the life of the pregnant woman, but no exception for the woman’s health.
Abortion providers and abortion-rights advocacy groups went to court to oppose the “partial birth” ban. Providers and advocates feared, I believe, that the Act would set the nation on a slippery slope toward re-criminalization of most abortions. They also feared that the Act would and could be interpreted to prohibit medically safe and recommended abortion techniques, including the technique commonly used to terminate second trimester pregnancies, the “D&E” procedure.
Unfortinately, in the case called Gonzales v. Carhart (2005), the Supreme Court upheld the constitutionality of the federal partial-birth abortion ban. The Court issued an opinion written by Justice Kennedy to defend its decision.
6. Challenging Justice Kennedy’s Paternalism and Maternalism
Justice Kennedy’s opinion in Gonzales is noteworthy is noteworthy for the extent of its paternalism and maternalism. His maternalism and paternalism do not countenance that a sane and ethical woman seeking abortion could knowingly approve the destruction of her living fetus in the way entailed by “partial birth” abortions. In Kennedy’s words:
The State has an interest in ensuring so grave a choice is well informed. It is self- evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form.
But is it obvious that a woman would be disturbed by detailed knowledge of partial birth abortion, in just the way Kennedy described?
According to Justice Kennedy, “Respect for human life finds an ultimate expression in the bond of love the mother has for her child.” Might respect for human life find another ultimate expression in the deference governments show toward the morally autonomous decisions adults make about their own lives and families?
First of all, a woman whose belly is swollen with a pregnancy knows what lies therein (namely, a developing living human form); and she knows that there are only a limited number of ways to remove it.
Second, a woman might rationally believe that the D&X procedure is the best and safest procedure available for a termination of a pregnancy which she believes is vitally important to herself or loved ones.
A woman may regard a partial-birth abortion as a lesser of two evils, if an evil at all. Women’s morality of killing as applied to abortion is like men’s morality of killing applied to war-- subtle and contextual. And a woman need not, on account of gender and instinct, hold a grudge against physicians who offer the D&X elective procedures.
7. Justice Ginsburg’s Insightful Dissent
Justice Ruth Bader Ginsburg is a mother and the sole woman on the Supreme Court today. Justice Ginsburg, a leading feminist lawyer before becoming a judge, saw straight through Kennedy’s analysis. She recognized Kennedy’s maternalism and paternalism for what they are. “This way of thinking,” she wrote in an animated dissent, “reflects ancient notions about women’s place in the family and under the Constitution—ideas that have long since been discredited.”
Justice Kennedy and the justices who voted with him are sadly out of step with the times and with court decisions of recent decades. These decisions disallow “archaic and overbroad generalizations . . . such as assumptions as to [women’s] dependency” and “overbroad generalizations” about the “talents, capacities, or preferences” of women that “have . . . impeded . . . women’s progress toward full citizenship stature throughout our Nation’s history”.
8. Women are Autonomous Decision-makers
The model of abortion regulation I termed the “model of privacy” best respects women’s equality and autonomy. Paternalism, which is deeply embedded in the model of permission, is off the mark. Women make life-shaping and life and death choices everyday. If a woman gets emphysema, she must decide on her own whether to stop smoking; if she gets cancer, she must decide between chemotherapy, radiation, lumpectomy or mastectomy. She must decide whether to buy a house or keep her savings in the bank; whether to marry or divorce; whether to authorize experimental surgery for her child.
Today, American society seems prepared to presume women’s competence to run their own lives and run for president; but once women become pregnant, suddenly lawmakers and judges think they have to be protected. Abortion opponents’ “women’s health” argument against abortion and in favor of abortion restrictions can be maddening. They say: Women naturally regret their abortions; they find them depressing; they get suicidal; their lives are ruined by misleading and deceptive abortionists. They say: Women are too poor, too uneducated, too beset by hormones and confusion and male domination to think for themselves. In their view women need to be discouraged from abortion, led to alternatives like horses to water; counseled, shown instructive videos, counseled again, shown graphic, gory images of aborted babies in trash cans, and cute fuzzy ultrasounds; and maybe prayed over. Justice Ginsburg’s dissent in Gonzales broke through all the 19th century nonsense of “women’s health”.
Maternalism imposes unrealistic expectations on women, sending them the message that they ought to become and remain mothers, almost no matter what. It is a matter of nature, duty, and personal fulfillment. Women with resources hear the message, but so do women who lack the resources for consistently good parenting. Maternalism tells women to mother but does not guarantee that they responsibly can.
9. A Narrow Space Exists for Justified Paternalism
A minority of women bent on terminating the lives of their fetuses may well need paternalistic intervention. A 37-year old mentally disturbed business-woman with four living children, Christy Freeman needed help. Last year police discovered a recently deceased 26-week old male fetus in Freeman’s home wrapped in a towel under her bathroom sink, another in her recreational vehicle, and two other fetuses wrapped in plastic in a trunk. Mentally disturbed women need help making choices about pregnancy, but Roe v. Wade’s right to privacy need not be watered-down on their account.
Typical women seeking abortions are not in need of paternalistic protection. Some however do need reliable child-care providers or public welfare assistance they can seek without shame. This is what Sametta Howard needed. When her babysitter didn’t show up on a summer day, single parent, Sametta Howard went to work anyway, leaving her 2 small children strapped in car seats inside her car. The heat killed the children. Six months prior to the tragedy Howard had placed an infant for adoption; she had a fourth child who lived with his father. Heyward seemed to appreciate her limitations as a parent, but made a major error in judgment that led to the deaths.
There will always be women, and men, who make mistakes relating to their children. But this is not an argument against reproductive freedom. U.S. women are cared for by medical professionals with informed consent obligations, I believe women can be presumed to know ex.actly what they are doing when they choose to use birth control or to terminate a pregnancy.
10. New Approaches for Abortion Rights Advocacy
Groups advocating for abortion rights have found that stressing U.S. law-based doctrines of privacy is not working to stem the tide of abortion restrictions. A recent new strategy has been to emphasize abortion as an international human rights issue. The New York based Center for Reproductive Rights, for example, is stressing through its website and policy work, that women all around the world have good reason to want control over their fertility. In April the Center called attention to the fact that the Parliamentary Assembly of the Council of Europe (PACE) approved a major resolution on access to safe and legal abortion : : “The Assembly urged all member states to "decriminalize abortion, within reasonable gestational limits" and to guarantee women's access to safe and legal abortion.”
Going “international” does not guarantee a revival of a model of privacy; but the discourse of human rights strongly connotes that control over reproduction is more than merely something a state must permit. It is -- as my Ms. Sanger and your Ms. Keto understood—something for the just state to guarantee, as a personal entitlement.
I discussed Japanese abortion law and policy with several lawyers and law students on a number of occasions after my lecture. I learned that some feminist lawyers are proud of the pathbreaking work of Mrs. Keto, who brought birth-control clinics to Japan after meeting Margaret Sanger in the United States in hosting Sanger’s historic first journey to Japan. I learned that many people in Japan have concerns about the unequal social and employment status of Japanese women, and about pockets of paternalism embedded in Japanese employment and abortion law. For example, in order to obtain abortions women must obtain signatures of their husbands or sexual partners.
The Japanese are not particularly religious, yet women are encouraged by cultural norms to feel guilt over abortion, feelings that they can address through a religious ritual. By the ritual is not free. The water baby rite is thought by the educated Japanese lawyers with whom I spoke to be exploitative and commercial. It cost about $3,000 US dollars to purchase a medium-sized Jizo statue and have it maintained at the Purple Cloud Temple in Chichibu.
There is still no widespread discourse of abortion rights in Japan; rather, abortion is simply available as a matter of medical policy and practice, contingently and at least for now. In fact, abortion is still technically a crime in Japan. A statutory exception to the criminal code relieves women and doctors of liability for certain, permitted abortions performed on certain permitted grounds. Some of the people I talked to believe that Japanese and American women would benefit from human rights discourses about abortion as a woman's supra-political independent social, economic and moral entitlement. Posted
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