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