ABORTION AND THE SUPREME COURT: RIGHTS, RIGHT, AND THE RIGHT

ABORTION AND THE SUPREME COURT: RIGHTS, RIGHT, AND THE RIGHT

By Joel Levin

The Supreme Court has declined to stop the new and bizarre Texas abortion law from going into force. The case is Whole Women’s Health v. Austin Reeve Jackson. That Texas law – which essentially delegates to individual citizens, rather than to the state the ability to impinge on the right to an abortion, even those involving children and rape, after 6 weeks and rewards those self-appointed, private posse individuals with a $10,000 bounty against any and all who aided such an abortion, even a taxi driver taking a pregnant woman to the airport to fly to a state allowing such procedures – is in direct contravention of Roe v. Wade. Roe is the landmark case which offers calibrated Constitutional protection to women seeking an abortion. Those seeking to exercise and to enforce their rights under Roe, and those helping them do so, are now subject to severe financial penalties collected by bounty hunters. That is, the state function of protecting individuals, the fetus and the pregnant woman, has been outsourced, but the Constitutional limitations on that function, Roe’s limitations barring a variety of state actions, have melted away. 

It has often been said that Social Security is the third rail of American politics. For the last 50 years, that has not been the case: it has been abortion. The abortion debate has energized the political Right, allowing it to energize its base, raise money and get out its votes, and to claim a certain moral high ground, particularly since, as with so many moral arguments, they evoke the extreme or limiting case, here third trimester abortions for seemingly reasons no greater than inconvenience. Virtually every Republican candidate now must pass an anti-abortion litmus test. Those who fail have been drummed out of the party. Meanwhile, the in-harmony drumbeat of pro-life clergy, right-wing political strategists, Fox News and OAN personalities, talk radio hosts, and others on the Right has been relentless, decade after decade, in a fairly single-minded way, calling all, here read “Democrats”, who have any sympathy for women seeking abortion, to be no better than those aiding and abetting murder.

The Texas law is at once preposterous and elegant. By offloading the state regulatory function of overseeing abortions to private individuals, the new law seeks to avoid the breaks on state action that are the basis for assigning political rights. That is, we normally think of rights as rights against the state or rights the state cannot take away, not rights of one individual against another. Free speech, free press, fair trial, equal protection, due process: these are all rights individuals have against the state. Private individuals play little or no role and Constitutional law largely ignores them. In that way, there is a certain elegance to the Texas law, as it bypasses the normal guarantees and protections tied to state action, but undermines them nevertheless. In another way, the delegation of state functions to individuals is reminiscent of allowing punishment to be decided by lynch mobs or ceding the re-enslavement of any African-Americans to private citizens who could avoid all legal process and protections with a simple private affidavit, per the Fugitive Slave Act of 1850. In both cases, legal function and enforcement became the province of private citizens and due process vanished.

The number of state laws that have been enacted since Roe, with the intent to limit or circumvent Roe, at times seems endless. State legislatures regularly pass, often annually, new laws that challenge Roe, limit Roe, undercut Roe, ignore Roe, and generally make abortion more difficult by limiting qualified providers, specifying special consents, demanding additional medical tests, requiring counseling, demanding return visits by pregnant women, necessitating extraneous and intrusive medical procedures, redefining fetuses as persons, and generally doing everything possible, including criminalizing physicians who perform the actual procedures, to prevent abortions from occurring. In fact, 12 states have Roe trigger laws: anti-abortion laws that will automatically come into effect, be triggered, should Roe be overturned.

The attack on Roe has historically witnessed a diligent judicial response, largely unprecedented in their volume, that now seems routine. While these new laws and the attacks on them wend their way through the courts, the appellate courts and particularly the Supreme Court normally stop the laws’ enforcement, as such laws seem plainly or on their face to infringe on a present Constitutional right. That is, when a right is challenged, and here that right to an abortion was expressed in the 7-2 Supreme Court decision in Roe, the Supreme Court halts laws limiting that right until the matter has been fully adjudicated in the trial court and all appeals have been exhausted. They do this by issuing an injunction, that is, an order barring enforcement of a law until the legality of that law can be determined in a careful and thorough manner. For seasoned court watchers, the fact that that did not occur in this case is telling as a radical departure from all prior abortion decisions. As Justice Sonia Sotomayor wrote in her dissent: 

“The Court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand. Last night, the Court silently acquiesced in a state enactment of law that flouts nearly 50 years of federal precedents.”

The subject of abortion is vast, complex, and persistently controversial. The law is but one part of it, and often the analysis in the law courts exhibit a mediocre quality at best, flatly contradictory internally and biologically and legally incoherent at worst. I want to spend a few moments talking about the subject areas that speak to the abortion controversy and then mention at least one Supreme Court case flatly ignored in the Supreme Court analysis in the Whole Women’s Health decision. That is, what needs to be kept in mind, but too often is not, is that abortion or the decision to abort implicates four areas that are not only not the same, and not only overlap only in part, but often have scholars and literatures do not speak to, and in fact are often ignorant of, each other. These are the political realm, the science of biology, ethics, and Constitutional law. These areas then.

Politics first. The right to abort is a political right, part of the broader right to autonomy, the right of women to control their own bodies, and a liberty right, the right to act freely even in reaching the wrong decision. Political rights are hardly absolute and when and how a democratic process might create any particular limitation to them forms part of the ongoing debate about political rights. For example, we might think that the freedom of speech is relatively straightforward, but, in a democracy, we might also think that such freedom does not extend to commercial speech for cigarette advertisers, or to hate speech for groups advocating ethnic cleansing or bigotry, or to defamatory speech for those who unfairly ruined the reputation of another. The area of abortion is no different. Democratically elected legislatures impose limits on abortion routinely. The question always is: can they? Bodily integrity is a core and basic right, one inherent in the principles preventing slavery, indentured servitude, and cruelty to prisoners. It gives rise to our rights to do as we want with our lives, from choosing a job, to choosing a mate, to traveling abroad. Any limitations on that right, under most political theories, at least those other than cults or authoritarian ideologies, are severely limited. The political argument made by the Right involves changing the conversation from the limits of the rights of one person to balancing the rights of two. We are asked to judge the rights and interests of competing persons, mother and offspring, against one another. Calling a fetus a person may seem to be giving up the whole argument with a label, but it is the equivalency between persons and fetuses that energizes the anti-abortion Right. 

The debate is too complex to describe adequately here, even too complex to adequately sketch. However, several themes that run through the political rights arguments are worth stating. First, the labeling of the fetus is often a religious or spiritual argument, originating in Christian theology with Augustine and Aquinas, where the fetal tissue or cellular material is early on imbued with an immortal soul. That is an argument drawn from religion. It is borrowed heavily and with passion by many on the political Right to justify assigning rights to fetus. For some, it is as clear as it could be that the soul is essential in defining us as human beings (one might look to the writings of John Finnis), while for others, it is the purest nonsense (consider the writings of Finnis’ late colleague, Derek Parfit). Christian theology (with some borrowing from Aristotle) puts ensoulment at 40 days, suspiciously mirrored in the six-week Texas statute. 

None of this takes us very far, but it does reveal weaknesses on both sides if the only two positions are these: the position that our bodies are our own versus the position that early on fetuses are fully persons. Consider those opposed to abortion, those claiming the title of pro-life. Relying on an argument based on theology rather than politics, and steeped in a medieval biology more familiar with leeches than antibiotics to cure fever, is hardly consonant with modern science and is an embarrassment to anyone citing such authority today. Further, we have never considered all persons in all situations to have the same rights when weighing those rights, even if they may have once had those rights in an equal amount. For example, the right to the freedom to live where we want, associate with whom we want, and travel where we want is hardly afforded to those convicted of certain crimes, who may have forfeited those rights, beginning by being denied residency outside prison walls. The same to those needing a guardian or who have signed agreements that gave away rights they would otherwise have (simple confidentiality clauses in a legal settlement give up the right to free speech and a plea bargain by a criminal defendant giving up the right to a jury trial). We make distinctions based on persons’ ages and capacities in deciding whether, for example, they can vote, enlist, smoke, drink, adopt children, marry, serve on juries, carry weapons, run for office, or drive. Equality can be ephemeral.

But consider problems with the position of those who see themselves as pro-choice. We often assign various rights to those not fully born humans, from the American flag to national parks to graves, or, more interestingly, to animals. We no longer think that, even if we own an animal, we have the right to torture or inflict pain on it. We now put severe limits on how animals are treated, what kind of experiments can be conducted on them, what kind of work we can demand of them and, in general, how we treat living things we might otherwise consider to be property. If we allow the regulation of our freedom with regard to the treatment of animals, from pets to livestock to wild animals, are we really prevented from giving the states certain powers to protect the fetus? The political debate gives rise to a close scrutiny of who we might want to assign individual rights, what those rights amount to, how they figure when they compete with other rights, and whether something short of rights, that is, mere interests (as Peter Singer in Animal Liberation reminds us, even if animals may not have full-blown rights, they may have an interest in not being treated cruelly), when those interests can prevent us from simply asserting, without limitation, rights we thought we otherwise had.

The science of biology. Pregnancy is essentially a biological or medical process, not a political one. Babies were created the same way millions of years ago as they are today (the limiting case of artificial insemination or in vitro fertilization being recent and still rare), long before the U.S. Constitution, or, for that matter, before Christian theology and the human idea of the soul. Sexual reproduction of offspring is the quintessential method for life on the planet to continue (at least more complex life than the molds, plants and sponges that reproduce through fragmentation) and any real understanding of it involves, at a minimum, some study of physiology, medicine and genetics and, at a deeper level, biochemistry, evolutionary biology, and perhaps, as our knowledge increases, theoretical chemistry and atomic physics. In biology, there is no person or non-person, merely living organisms, and there is no moment when a fetus one second or one day or one month later is anything other than a more complicated set of cells within that organism. All is cell biology choreographed by DNA and a function of the laws of biochemistry. We then might think that there is no special transition moment except survivability outside the womb, either through natural or induced birth. Moreover, the difference between a human fetus and say a bonobo fetus is physiologically, functionally, and genetically minimal. Yet we accord bonobos no rights or Constitutional protection, despite a 99.6% DNA match with humans.

There is (at least) one interesting biological fact of relevance here, typically ignored in the debate, but discussed in the writings of Stephen Jay Gould, the great evolutionary biologist. The animal kingdom delivers, to put it in an oversimplified way, two types of offspring: those who can quickly survive on their own and those who cannot. We notice with any number of animals that they have basic survivability skills: the ability to move from danger, to feed themselves, to stay with the crowd, to call their mother, and to keep warm. Anyone who has had a puppy noticed these things from the first days. These would be offsprings who can be said, in some basic way, to be able to survive on their own. There are other offspring who lack these skills and who in many ways require the constant and close protection of their mother. That is, they are born before they are able, or even close to being able, to survive outside the egg or the womb. These offspring are post-birth fetuses and they are not uncommon in the animal kingdom. Gould wants to include human babies in that group, not for any purpose of the abortion argument, which (as far as I can tell) he never raises, but merely to classify humans in the way they should properly be classified. The reason we are born as fetuses is due to the extraordinary head size that infants possess by the time they begin to walk, to feed themselves and to communicate, somewhere around a year. By that time, their head size is far too large for vaginal delivery to be successful. Women simply cannot give birth to the human beings we all are and so, in that we have evolved large heads, but women have not commensurately evolved enormous hips, we are delivered as fetuses.

What should we make of this biological analysis? Should we say that because babies we ordinarily adore are fetuses and because we do not want to see any harm to babies, then, logically, we would not want any harm to come to fetuses, and, so, abortion is even less justifiable than we might have thought? Or, should we say that, just because fetuses live a longer time than we thought, that only makes their early days more distant from ordinary personhood and less worthy of protection. An acorn is not a grown oak. In fact, prolonged fetal-hood might provide some justification for a pro-choice position, just because it takes a great deal longer than we thought for fetuses to become biologically viable. Terminating them earlier than we originally might have done could arguably have greater justification. Societies once treated the brutal killing of very young children as normal, perhaps reflecting this idea that children are less than fully human. Early English common law declared the killing of an infant six months or younger to be a minor misdemeanor, but a killing after that to be a capital crime. Is that an example worth considering, or is it just another brutal fact about earlier societies that needs to be permanently overcome?  If not, what relevance should we give to any of the biological factors when nature is full of predatory behavior, random death, abandonment of young, the further abandonment of the old, and often levels of cruelty that are virtually impossible for us to watch? Does biology matter here?

Ethics next. The rightness or the wrongness of abortion in any given circumstance fundamentally and irreducibly implicates an ethical judgment. Here, a few basic ethical distinctions are useful. Ethics is an area where almost everything makes a difference and lacking, unlike law for instance, sharp corners. Firm distinctions are a rarity. There are a variety of ethical theories that treat situations differently, and it is hard to be confident at any time that one particular theory is the one that should be followed, let alone any particular variation of that theory. That is, whether we ultimately want to seek the virtuous, the right, the consented to, or the good is a matter of which of the main western ethical theories one follows. After 2500 years of extensive debate, no single solution seems to be in sight. Even if one finds a theory one is comfortable with following, say a theory of rights, the kind of theory that western law so enjoys, one needs to be clear that having a right to do something involves the right to do the wrong thing. One might have a right to spend one’s money doing what one wants, but it might be wrong to do so, as it might be at the expense of failing to educate one’s children or keep them healthy, or, more generally, failing to provide funds one could easily spare to a charity that supports those who otherwise would die of disease, war, starvation or homelessness. 

Most ethical theories today recognize at least two classes of individuals other than fully born present human beings to be worthy of ethical consideration: animals and future people. In that a fetus might share relevant characteristics with an animal who we would not want to mistreat, or who can be thought of as a member, without question, of the nearest future generation among all the future generations, that might entitle fetuses to some protection. However, if one endorses a rights theory, the kind of theory that allows that women have the right to their own bodies, one might recognize that protection of the fetus, but not see it rise to a right. Animals may not have a right to do certain things (preserved habitat or free range), while future generations, not even yet existing, may also not have rights (for example, to resources or a healthy planet). They may have some interests and we may want to morally take account of that and of them, but those reasons may be insufficient to trump rights. We are then left with an individual right, one that implies the right to do the wrong thing, perhaps like a parent who spends money imprudently on luxury goods or gambling at the expense of their children’s health or welfare, we might condemn it (a particular abortion) but not prohibit it. Rights trump interests, to use Ronald Dworkin’s moral calculus.

Constitutional law. Constitutional law, or more grandly, Constitutional jurisprudence, involves an idiosyncratic and jumbled mix of revered (even received) written text, 200+ years of glosses, interpretations, and textual easing and erasing, 27 Amendments, and the larger principles of what it is to have a government founded on a written Constitution (and perhaps also the Declaration of Independence). At the risk of oversimplifying the Constitution into a few, basic principles, we might think of it as a document that does three things: it sets out the responsibilities, operations and limitations of governments, federal and state; it guarantees a democratic process with certain caveats and limitations; and it grants a large but not unlimited set of individual liberties. It does all this in the context of an Enlightenment-era document, one drafted by a small and undemocratically selected group of well-off, propertied, white men, largely sympathetic to slavery, overwhelmingly Anglican Protestant, somewhat xenophobic, and not a little antithetic to the interests and dignity of women, blacks, the indigenous, and those diminished and impoverished.

Provisions of the Constitution often conflict or appear to conflict. Meanwhile, interpretations have varied widely. At one point, for example, the Supreme Court held that state-imposed limits on the workplace to 60 hours per week, meant to improve the safety and health of factory workers, was unconstitutional (Lochner v. N.Y.); while in an earlier decision, it held that freed African slaves could not be accorded rights even in states that had abolished or never allowed slavery(Dred Scott v. Sanford), and that an American born in Oakland, California could be locked up for years because his ancestors came from Japan (Korematsu v. U.S.). We look at these cases with anger and wonder, but they provide a basis for humility and questioning whether more recent cases might be someday thought to be as rash and pernicious. Asking the courts to second-guess or strike down the laws of democratically elected state legislatures or of Congress risks the courts’ making decisions at once bad, anti-majoritarian and permanent. 

All of this is part of the backdrop of Roe v. Wade and gives it context. Roe came down 8 years after the landmark case of Griswold v. Connecticut, which first clearly announced a right to privacy embedded in the Constitution. Griswold involved a married couple’s rights to be free from state restrictions on the use of contraceptives in the privacy of their own house. These are seemingly rights that anyone ought to enjoy, but rights not expressly found in the Constitution. Here we might, again at the risk of extreme reductionism, suggest that the Constitution can be seen as a document that allows the democratic process more or less always to prevail with one caveat and three exceptions. The first caveat is that America is not a democracy or anything like it, as demonstrated by the fact that we have an Electoral College for the Presidency, a Senate chosen by states rather than by population, and gerrymandering in the most severe way for a myriad of offices in the states and the municipalities (a practice largely unscrutinized or ignored by the courts). That said, the democracy that we have is largely afforded sovereignty. That means that, whatever the legislature says to be the law of the land, is the law, with three broad exceptions: enumerated personal liberties, minorities unable ever to gain a democratic majority, and the protection of the larger or meta-principles that underlie the Constitution generally. Two of these apply to the abortion debate. Both are irreducibly contentious and controversial. (It is nearly impossible to make the argument that women constitute a permanently insular minority unable ever to gain political power, given the number of women who are governors, elected to the state legislatures and Congress, serving in the courts, and holding the Vice Presidency. Even if there are numbers are not equal to those of men, they are growing, and they greatly exceed those of fetuses holding office).

Neither abortion nor anything related to it are mentioned in the Constitution. Nor can it be said by any stretch of the imagination to have been on the minds of any of the original authors or subsequent authors (so-called Founders and successive Founders) of various Amendments. That said, neither were public schools nor their desegregation, Brown v. Board of Ed. notwithstanding, nor marriage and same sex marriage, Obergefell v. Hodges notwithstanding. These decisions were considered reasonable extensions of the way we, and not our ancestors, think about equality today. Equality is specifically mentioned both in the Constitution, in the Equal Protection Clause of the Fourteenth Amendment, and in the opening words of the Declaration. What about abortion rights? Where is its rights clause that trumps democratic interests expressed in state legislatures? It is not easy to locate. The best candidate is the Ninth Amendment, which states, with brevity and a bit of vacuousness, that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Which others are never mentioned. 

We use the Ninth Amendment to ground our modern concept of a right to privacy. That right, which began with Brandeis’ famous admonition that we all have the right to be left alone, seems essential to our way of living today, and is the basis of legislation from HIPAA to the Universal Declaration of Human Rights. Our sense of autonomy and of ourselves require a notion of privacy, personal space, non-interference with and control of our bodies, possessions and thoughts. It allowed for the unregulated private use of contraceptives in Griswold and the control by women over their own bodies and by no one else in Roe. But is it part of the Constitution and does it belong to the abortion debate? Privacy is not expressly mentioned in the Constitution, and that fact alone make certain kinds of Originalist arguments dismiss it. However, what is mentioned in the Constitution, in the Fourth Amendment – which guarantees the “right of the people to be secure in their persons, house, papers and effects, against unreasonable searches and seizures, shall not be violated” – is a property right that is based on a privacy right. That privacy right may well be hearty enough either to start its own set of further decisions or to serve as a further basis for the Ninth Amendment to embrace privacy. The problem remains that this is not simply a two party controversy, one between the state and the individual, but a three party one, as the fetus is an individual, whether born or unborn, person or non-person, able to live by itself or dependent, but one with a being and an interest, and taking the matter further, a right. Privacy alone cannot end the argument.

The other basis involves the meta-principles that govern the Constitution. The Constitution only makes sense if read in the larger context of its goals and purposes: a republic, a democracy, a market economy, individual liberties of expression, assembly and religion, due process and fairness in the courts, federalism between the national and state governments, equality among individuals, and a right to the public good. Most of these are unmentioned or only mentioned in passing in the Constitution, but we can only make sense of the document by understanding their basic purpose. Put differently, the Constitution comes without an instruction manual and meta-principles are the only plausible candidate available. Many argue that privacy is one of those meta-principles, as it explains so much of the purpose of the document, including what is involved in the rights against unreasonable search and seizures, the rights to free expression, the right to practice even an incoherent religion, the right against cruel punishment, and much of the way the document holds together. 

We see autonomy and dignity as essential meta-principles as well, and privacy is a component of them. Privacy, as we have seen earlier, allows protection of one’s body, or perhaps more to the point, the right use one’s body to some extent as one wishes even if, for example, one uses it imprudently to become alcoholic, drug dependent, self-mutilating, and obese. That is what autonomy implies: the right to be wrong. Again here, though, one is unclear what the full limits are. We might assign fetuses certain interests or rights, for example, if the fetus was injured due to the negligence or inebriation of a driver in a car accident and is then born with a defect due to that negligence or inebriation. We may give them the right to hold liable the guilty driver. Moreover, we may even wish to assign the fetus the right to prevent the mother from taking thalidomide, a drug once used by pregnant women for various therapeutic reasons (including multiple myeloma), but which leaves the offspring without arms and legs. Similarly with limitations on the mother’s use of alcohol or drugs. In that these are at least plausible limitations, they are so not because of a simple diminishment of the right of privacy, but again, because of the three party – pregnant woman, state, and fetus – aspect of the relationship.

That does not mean that protection of non-born humans is generally worthy of that same degree of protection in the face of democracy or personal rights, whether those include animals or fetuses. It also does not mean that most central questions that we face today – almost certainly that involving environmental ethics and the future of the planet – are part of the set of principles of the Constitution, a document drawn, even with the later addition of the monumental three post-Civil War Amendments, long before anyone considered any of these questions, except in the vaguest and sketchiest of terms. Just because something would be morally right doesn’t mean that the Constitution covers or cares about it. This alone would be a reason to stop thinking that Constitutional text is holy writ and get on with the process of governing the society we have, not the one we once had or the one we imagined we had.

It also means that, given the complexity of all these questions – not only the areas of politics, biology, ethics and law, but all the various positions, the validity of various arguments, and what counts as positions that ought to be allowed in our modern legal system – the courts, and particularly the Supreme Court, ought to take their time and weigh all of this. In failing to grant an injunction in Whole Women’s Health, the court did none of that. Rather, it rushed to judgment in a rash way, and allowed the critical question of offloading state responsibility to private parties to proceed apace, putting pregnant women, and their friends and allies and families, in jeopardy. In so doing, other than simply acting rashly, it also violated an old precedent, one largely ignored or forgotten, authored by perhaps the court’s wisest Justice, Benjamin Cardozo.

The case is Nixon v. Condon, originating from Texas and decided in 1932. It was brought by Dr. L. A. Nixon, a black, would-be voter, who was barred because of race from voting in the white Democratic Party of the old Jim Crow South. Since the primary involving the Democratic Party guaranteed the eventual winner, barring Dr. Nixon from joining effectively prevented his right to vote and, to a lesser extent, his right of association. The white Democratic Party of Texas argued in court that it was private not public, and as a private association, could hardly be regulated, told what to do, or told who could be a member, any more than a religious organization could be forced to allow atheists or a libertarian party forced to take communists. It is worth quoting at length from the holding of Justice Cardozo:

“The pith of the matter is simply this, that when those agencies are invested with an authority independent of the will of the association in whose name they undertake to speak, they become to that extent the organs of the State itself, the repositories of official power. They are then the governmental instruments whereby parties are organized and regulated to the end that government itself may be established or continued. What they do in that relation, they must do in submission to the mandates of equality and liberty that bind officials everywhere. They are not acting in matters of merely private concern like the directors or agents of business corporations. They are acting in matters of high public interest, matters intimately connected with the capacity of government to exercise its functions unbrokenly and smoothly.“ 

Thus, Dr. Nixon could join a private political party and vote in the public interest primaries. When a private entity is “invested with an authority”, it is held to be “acting in matters of high public interest”.  

That is the pith of the matter, a pith the present Supreme Court might have taken a bit more time to ponder​.