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The Great Abortion Case

I stress this point because it is important to notice that those who urge the Supreme Court to leave the question of abortion to the states, to decide as their politics dictate, have in effect conceded that a fetus is not a constitutional person. In oral argument, Justice White asked Charles Fried whether in his view there is “some problem about the state permitting abortion.” Fried replied, “Oh, no,” and said very firmly that it would be a serious mistake for the Court to “constitutionalize” the issue at any “point in the spectrum” by requiring constitutional scrutiny of permissive abortion legislation by a state. That position is preposterous except on the assumption that the Constitution itself offers a fetus’s life no protection at all.9

But Fried could hardly have given White’s question any other answer. It would be political madness for the Court to try to force unwilling states to outlaw abortion; and neither the government nor any other responsible group has asked it to do so. The damage to the community, to the Court’s authority, and to the Constitution would be far greater if it did try to force the states to outlaw abortion, than if it simply left the law where it stands. But the Court can avoid that inconceivable decision, legitimately, only by confirming Roe v. Wade‘s explicit decision that a fetus is not a constitutional person. So the most complex and difficult of the legal issues in the abortion dispute has been removed from the controversy by a kind of practical necessity. I do not mean to suggest, by emphasizing these practical arguments for that view, that it is not the correct view in law. On the contrary, I think that it is.

The question is one of legal interpretation. The principle that the fetus is not a constitutional person fits better with other parts of our law and also with our sense of how related issues would and should be decided if they arose than the rival principle that it is. Even if the fetus is a human being, it is in a unique situation politically as well as biologically for a reason that could properly be thought sufficient to deny it constitutional status. The state can take action that affects it, in order to protect or advance its interests, only through its mother, and only through means that would necessarily restrict her freedom in ways no man or other woman’s freedom could constitutionally be limited: by dictating her diet and other personal and intimate behavior, for example. Apart from anti-abortion statutes, there are few signs in our law of the kind of regulation of pregnancy that would be appropriate if the fetus were a constitutional person, and the Supreme Court has never suggested any constitutional requirement of such protection.

The best historical evidence shows, moreover, that even anti-abortion laws, which were not prevalent in the United States before the middle of the nineteenth century, were adopted to protect the health of the mother and the privileges of the medical profession, not out of any recognition of a fetus’s rights.10 Even states that had the most stringent anti-abortion laws before Roe v. Wade, moreover, did not punish abortion as severely as murder, as they should have done if they thought a fetus a constitutional person. Nor did they try to outlaw or penalize a woman procuring an abortion in another state or abroad.

So the better interpretation of our constitutional law and practice holds that a fetus is not a constitutional person. That conclusion could be accepted, as I suggested, even by someone who thinks abortion a heinous sin: not every sin is or could be punished by law. But it will of course be easier to accept for someone who believes that a human being has no moral right to life until it has developed self-consciousness as a being whose life extends over time.11 On the assumption that this condition is not reached until some time after birth the interpretive conclusion, that a human being becomes a constitutional person no earlier than at that point, seems even sounder.

2.

It is therefore not an acceptable argument, against the claim that women have a constitutional right to choose an abortion in early pregnancy, that the fetus is a constitutional person whose competing right to live would overcome any such right. I have already mentioned the argument for the claim that women do have a constitutional right of that character. In a series of previous cases relating to sterilization, marriage, and contraception, the Supreme Court recognized that all citizens have a general right, based in the Fourteenth Amendment’s guarantee of due process of law, to decide for themselves ethical and personal issues arising from marriage and procreation.12 Justice Blackmun relied heavily on these previous decisions, which have come to be called “privacy” decisions, in his opinion for the Court in Roe v. Wade. He argued that though abortion raises questions different from those raised by these other issues, the general principle that people have a right to control their own role in procreation plainly applied to abortion as well.13 Neither Missouri nor the Bush administration has argued that these precedents should be overruled.14 Fried, in oral argument, said that the case of Griswold v. Connecticut, which upheld a right of contraception, was correct and should not be disturbed. He said that Roe v. Wade could be overruled without affecting that case or the other privacy precedents, that Roe v. Wade could be pulled from the fabric woven by these past decisions like a single thread.

Abortion cannot be disentangled from contraception even medically, however, because both the IUD and the most popular and safest birth-control pills act as abortifacients, that is, they destroy fertilized ova. So the Court could not hold that a woman’s right to control her role in procreation ends with fertilization without permitting states to outlaw the contraceptives now in use. That would be in effect to overrule Griswold, which Fried said was a correct decision. Even if contraception and abortion did not overlap medically in that way, they could not be distinguished in principle, once it is assumed that a fetus is not a constitutional person.

The Court’s previous privacy decisions can be justified only on the assumption that decisions affecting marriage and childbirth are so important, so intimate and personal, so crucial to the development of personality and sense of moral responsibility, and so closely tied to religious and ethical convictions protected by the First Amendment, that people must be allowed to make these decisions for themselves, consulting their own conscience, rather than allowing society to thrust its collective decision on them. The abortion decision is at least as much a private decision in that sense as any other the Court has protected. In many ways it is more private, because the decision involves a woman’s control not just of her connections to others, but of the use of her own body, and the Constitution recognizes in a variety of ways the special intimacy of a person’s connection to her own physical integrity.15

If a fetus were a constitutional person, then abortion could of course be distinguished from at least contraception that did not involve abortifacients, because a state could properly cite a compelling interest in protecting the fetus’s right to life and to be treated with equal concern. But given the assumption that a fetus is not a constitutional person, that reason for distinguishing abortion from contraception, and from the other activities permitted by decisions protecting privacy, fails. Fried tried to distinguish the contraception cases on the ground that Griswold v. Connecticut was based not on any general right to control one’s own procreation, but on the different basis that the police could enforce a prohibition on the use of contraceptives only by searching the marital bedroom, which would be offensive. It is true that one opinion in Griswold v. Connecticut mentioned that reason for invalidating a prohibition on married couples using contraceptives. But it is a silly reason, not only because prohibitions on the use of contraceptives could be enforced without breaking down bedroom doors, but because the Court has upheld other criminal statutes that might be thought just as difficult to enforce without offensive and impermissible searches.16

In any case, the later contraception cases rejected that interpretation of Griswold v. Connecticut, and they are inconsistent with it. In Eisenstadt v. Baird, Justice Brennan, for the Court, stated the point of the past privacy cases this way:

If the right of privacy means anything, it is the right of the individual, married or not, to be free from government intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.

And one of the justices who dissented in the Griswold case, Potter Stewart, joined the majority in Roe v. Wade on the ground that if one accepts the Griswold decision, as he then did on grounds of precedent, one has to accept Roe v. Wade as well. Fried’s claim that the privacy decisions were really only about searching bedrooms proved too bizarre for him to defend with any confidence. When Justice O’Connor asked a direct question, “Do you say there is no fundamental right to decide whether to have a child or not?” he could only answer, “I would hesitate to formulate the right in such abstract terms.”

So the argument from precedent in favor of Roe v. Wade seems a strong one: Supreme Court precedents established a constitutional right of control over one’s own role in childbirth, and, if a fetus is not a constitutional person, that right naturally extends to abortion. But we must now consider the opposing arguments made by those lawyers, including the justices dissenting in that case, who insist it was wrong and should now be discarded. They say that the right to abortion is “judge-made” and has “little or no cognizable roots in the language or design of the Constitution.”17 Or that the right has “no moorings in the text of our Constitution or in familiar constitutional doctrine,” and cannot be sustained by “the interpretive tradition of the legal community.”18 Or that the right does not exist because the subject of abortion is “one upon which the Constitution is silent.”19

But these various complaints beg the question. Of course, if the judges who decided Roe v. Wade made up the constitutional rights they announced, or if those rights have no roots in the language or design of the Constitution, or if they cannot be established as drawn from the Constitution by interpretive methods traditional to legal reasoning, then the decision was certainly wrong. But we cannot decide whether these complaints are justified without some theory of how judges should interpret the abstract provisions of the Constitution, such as the provision that requires due process of law. How should judges decide which rights do and which do not have “roots” in the abstract language?

  1. 9

    In oral argument Fried said that the Fourteenth Amendment does not “take any position” on the question whether a fetus “is not merely potential life but actual human life.” That is true, as I said earlier. But it does not follow that the amendment takes no view on the different question I distinguished, which is whether the fetus is a constitutional person, that is, a person within the meaning of the requirement that a state accord every person equal protection. The Constitution, properly interpreted, must take a position on that point, because defining the range of its key concepts is part of what interpreting the Constitution is. And Fried’s position is defensible only if, on the best interpretation, a fetus is not a constitutional person.

  2. 10

    See “Brief of 281 American Historians as Amici Curiae Supporting Appellees” in Webster v. Reproductive Health Services. It is worth noticing that the historian cited in the government’s brief to support the claim that anti-abortion laws are traditional in America, James Mohr, is one of the signers of this brief.

  3. 11

    For an account and defense of this view, see Michael Tooley, “Abortion and Infanticide,” Philosophy and Public Affairs, Vol. 2, No. 1 (Fall 1972). The view has important implications, of course, for the end of the right to life as well as the beginning. See my monograph, “Philosophical Issues in Senile Dementia,” published by Office of Technology Assessment, U.S. Congress (U.S. Government Printing Office, 1987).

  4. 12

    See, for example, Skinner v. Oklahoma, 316 U.S. 535 (1942), Griswold v. Connecticut, 381 U.S. 479 (1965), Eisenstadt v. Baird, 405 U.S. 438 (1972). See also Carey v. Population Services International, 431 U.S. 678 (1977). In Griswold v. Connecticut, the Court held that no state could forbid married people the use of contraceptives. It expanded that holding in Eisenstadt v. Baird to include unmarried people as well, and in Carey v. Population Services International it held that a state could not prohibit the sale of contraceptives even to teen-agers.

  5. 13

    Many lawyers believe that an equally or even more powerful argument for the result in Roe v. Wade can be based not on the due process clause and the privacy precedents, but on the equal protection clause I mentioned earlier. They argue that anti-abortion laws should be considered suspect under that clause because such laws cause very great disadvantage to women, in some circumstances destroying their opportunity to lead lives routinely available to men. Legislatures are still dominated by men, many of whom believe unmarried pregnant women deserve punishment rather than sympathy, and few of whom could fully appreciate the misery of their situation even if they wished to do so. For a particularly effective account of this argument, and of the special impact of abortion law on women, see Silvia A. Law, “Rethinking Sex and the Constitution,” University of Pennsylvania Law Review, Vol. 132 (1984), p. 955.

  6. 14

    Griswold v. Connecticut and the other contraception cases figured prominently in the 1987 debates over the unsuccessful nomination of Robert Bork to the Supreme Court. Bork had written that these cases should be overruled, and the enormous unpopularity of that suggestion helped persuade public opinion to oppose his nomination.

  7. 15

    See the article by Donald Regan cited in note 7 above.

  8. 16

    The Court recently upheld a statute that made homosexual acts of sodomy a crime. (Bowers v. Hardwick, 106 S. Ct. 2841, 1986). Justice White’s opinion for the Court said that the fact that homosexual acts may take place in the privacy of the home was irrelevant, and that the contraception cases were not about private acts in that sense but “were interpreted…to confer a fundamental individual right to decide whether or not to beget or bear a child,” and hence were irrelevant to the question of homosexual sodomy.

  9. 17

    Justice White, in Bowers v. Hardwick. See the preceding note. White dissented in Griswold v. Connecticut as well as in Roe v. Wade. The acting solicitor general’s brief in Webster v. Reproductive Health Services quoted these remarks.

  10. 18

    See the brief filed by then acting Solicitor General Fried in Thornburgh v. American College of Obstetricians & Gynecologists, 416 U.S. 747 (1986).

  11. 19

    Fried, in the same brief.

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