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The Great Abortion Case

The various government briefs in Webster sometimes suggest an answer to that question which our legal tradition has decisively rejected: that abstract language should never be interpreted to yield a right that the historical framers who enacted the abstract provision did not accept themselves. The briefs argue that the Fourteenth Amendment cannot be thought to include a right to abortion because abortion laws were being enacted by states throughout the country when that amendment was added to the Constitution.20 But the Congress that enacted the Fourteenth Amendment itself segregated the public schools of the District of Columbia, and no one now argues that Brown v. Board of Education, which held that segregation violated the rights provided by that amendment, was wrong.

The briefs of the Bush administration and the state of Missouri also rely on a variety of other interpretative suggestions. They propose that the Constitution should be understood to contain only “enumerated” rights, that is, rights explicitly mentioned in the text. But that ignores the fact that the same legal situation can be described in different ways. The Supreme Court decided, in 1952, that the police may not pump out a suspect’s stomach for evidence. Shall we say that the Court decided that the right to due process of law, which is mentioned in the text of the Constitution, applied to the particular facts of that case? Or that it decided that people have a right not to have their stomachs pumped, which is derived from the due process clause but which is not itself mentioned in the text? There is only a verbal difference between the two formulations and neither is more accurate than the other.

In any case, if we must reject the right to an abortion because abortion is not mentioned in the Constitution, then we must also reject a great number of other, unquestioned constitutional rights that lawyers frequently describe in language not to be found there either. These include the right to use contraceptives, which the government now argues is part of the Constitution in spite of the fact that contraception is not mentioned. They also include the right to vote, to marry, to travel between states, to live with one’s extended family, to educate one’s children privately in schools meeting educational standards, and to attend racially desegregated schools. If these are all “unenumerated” rights, and so “judge-made” constitutional law, it hardly counts against Roe v. Wade that it falls into the same category.

One of the government briefs replies to that objection with a metaphor. It says that the supposed right of abortion “travels further from its point of departure in the text” than these other rights. But how do we measure the distance between a right and the constitutional language from which it is drawn? How can we tell whether the distance between abortion and the constitutional language of due process is greater than the distance between contraception or stomach pumping and that language? Or the distance between the other “unenumerated” rights I listed and the constitutional language in which these were rooted?

Our legal tradition gives a very different, less metaphorical and superficial, answer to the question how abstract constitutional provisions should be interpreted. Judges should seek to identify the principles latent in the Constitution as a whole, and in past judicial decisions applying the Constitution’s abstract language, in order to enforce the same principles in new areas and so make the law steadily more coherent. In that way, the principles that have been relied on to justify rights for one group or in one situation are extended, so far as that is possible, to everyone else to whom they equally apply. That common-law process was used in Roe v. Wade to argue that the principles latent in the earlier privacy decisions about sterilization and family and contraception must be applied to the abortion case as well. These earlier privacy decisions can themselves be defended in a similar way, as part of a broader project of the Court, begun earlier in the century, to identify and enforce the principles implicit in what the Court called “the concept of ordered liberty,” which means the principle a society truly committed to individual liberty and dignity must recognize. A right to control one’s part in procreation finds support in that general project, as well as in the more closely related decisions protecting privacy, because that right is crucially important to the moral, social, and economic freedom of women.

These are the arguments that the opponents of Roe v. Wade must meet, and they should try to meet them in the traditional way, by explaining why different principles from those mentioned, which do not yield a right to abortion, provide a more satisfactory interpretation of the Constitution as a whole and the Court’s past decisions under it. Of course different judges will come to very different conclusions about which principles provide the best interpretation of the Constitution, and since there is no neutral standpoint from which it can be proved which side is right, each justice must in the end rely on his or her convictions about which argument is best. But that is an inevitable feature of a political system like ours, which conceives of its constitution as a charter of principle rather than a particular collection of political settlements.

Certainly the present critics of Roe v. Wade offer no alternative. Since their question-begging rhetoric about “judge-made law” and “new rights” rests on no reasoned intellectual basis, it provides even less discipline than the traditional interpretive method, because the latter does demand coherent and extended argument, not just name-calling. The question-begging rhetoric, on the contrary, leaves lawyers free to accept constitutional rights now popular in the community, such as the right to legally integrated education and to use contraceptives, and to oppose rights politically more troublesome, such as the right to abortion, without having to explain what the difference between the constitutional standing of these rights actually is.

3.

Though Roe v. Wade held that women have a right in principle to control their part in procreation, it added that states have a legitimate interest in protecting “potential life,” and that any statement of a woman’s constitutional right to an abortion must take that interest into account. It decided that the state’s interest becomes compelling enough in late pregnancy, when the fetus has become viable, to permit the state to regulate or prohibit abortions after that point, except as necessary to protect the mother’s health. Unfortunately, the Court did not satisfactorily explain what kind of interest a state is permitted to take in “potential life,” or why its concern grows stronger or more legitimate after a fetus becomes viable.

The Court did not mean, of course, that a state has a legitimate interest in increasing the birthrate, because that interest would apply with equal strength at all times in pregnancy and, indeed, would justify a state’s opposing contraception as vigorously as abortion. Nor did the Court mean that a state may legitimately decide that a being with potential life has rights of its own which the state may take an interest in protecting. As we saw, the Court rightly held that the question whether a fetus is a constitutional person, and thus a person whose rights are competitive with the constitutional rights of others, must be settled at the constitutional level, not by state legislation, and it then held that the fetus is not such a person. What else could a state’s interest in “potential life” mean?

The most persuasive answer, which takes the Court’s subsequent decisions into account, is, I believe, the following. Even though a fetus is not a constitutional person, it is nevertheless an entity of considerable moral and emotional significance in our culture, and a state may recognize and try to protect that significance in ways that fall short of any substantial abridgment of a woman’s constitutional right over the use of her own body. A state might properly fear the impact of widespread abortion on its citizens’ instinctive respect for the value of human life and their instinctive horror at human destruction or suffering, which are values essential for the maintenance of a just and decently civil society. A political community in which abortion became commonplace and a matter of ethical indifference, like appendectomy, would certainly be a more callous and insensitive community, and it might be a more dangerous one as well.

A state’s concern for the moral significance of a fetus increases as pregnancy advances, and it is particularly intense after viability when the fetus has assumed a postnatal baby’s form. This is a matter of resemblance.21 People’s instinctive respect for life is unlikely to be lessened significantly if they come to regard the abortion of a just-fertilized ovum as permissible, any more than it is lessened when they accept contraception. But the assault on instinctive values is likely to be almost as devastating when a nearly full-term baby is aborted as when a week-old child is killed.

So the state’s concern is greatest after the point at which a fetus, under present technology, is viable, and a prohibition on elective abortion after that time will not significantly burden or compromise a woman’s constitutional right.22 Her right is a right to make fundamental decisions for herself, and that right is satisfied when she has had ample time after discovering her pregnancy to consider whether she wishes to continue it, and to arrange a safe and convenient abortion if she does not.23 Roe v. Wade, understood in that way, did not balance a woman’s rights against the competing rights of a fetus or of anyone else. Rather it identified a scheme of regulation that could meet a state’s most powerful needs without substantially compromising a woman’s rights at all.

The Court had to pick a particular event or period of pregnancy in constructing that scheme in order to make it clear enough to be administered by officials and judges.24 If the Court had said simply that a state must allow a woman “ample” or “reasonable” time after the discovery of pregnancy to decide about abortion, it would have faced a succession of test cases provoked by state legislatures defining the cutoff line earlier and earlier, so that it would eventually have been forced to draw a line in any case. The Court’s decision to make the crucial event viability, which occurs at approximately twenty-three or twenty-four weeks, has much to recommend it. Viability marks a distinct stage of pregnancy after which the difference between a fetus and a premature infant is not a matter of development but only of environment. Since viability follows “quickening,” or the point at which a pregnant woman feels movement in her womb, it is late enough to provide her a reasonable opportunity for an abortion after pregnancy is discovered. (Teen-age women, particularly, may easily be unaware of pregnancy before quickening; their periods may have been erratic or missing before pregnancy and they may not “show,” or look pregnant, before then.)

Some critics feared that advances in medical technology would make fetuses viable much earlier, and thus require the Court to change its standard; in an earlier case Justice O’Connor said that Roe v. Wade was for that reason on “a collision course” with itself. But a consensus of medical opinion now declares that fear unfounded: there is, according to the brief filed in the Webster case by the American Medical Association and other medical groups, an “anatomical threshhold for fetal survival of about twenty-three to twenty-four weeks of gestation‌because the fetal lung does not mature sufficiently to permit normal or even mechanically-assisted respiration before [that time].”

An established Supreme Court decision, particularly one that recognizes individual constitutional rights, should not be overruled unless it is clearly wrong or has proved thoroughly unworkable.25 Roe v. Wade is not wrong, and it certainly is not clearly wrong. Justice Blackmun’s opinion might have been clearer in some respects, and the Court might have chosen an event in pregnancy other than viability but which occurs at roughly the same time, such as neocortical functioning, to mark the point at which abortion might be prohibited.26 But these are hardly reasons to tear apart constitutional law by overturning the decision now. The Court should refuse to nourish the cynical view, already popular among its critics, that constitutional law is only a matter of which president appointed the last few justices.

4.

If the Court declines to overrule or substantially restrict Roe v. Wade, as it should, it must decide the more limited constitutional issues raised by the Webster case. As I said, the lower courts declared unconstitutional a variety of clauses in Missouri’s statute. The state does not now contest some of these rulings, and urges implausible but benign interpretations of others in order to save them from unconstitutionality. The important remaining controversy concerns the state’s ban on the use of public facilities in connection with abortion even when the abortion is performed by a private doctor and paid for by private funds.

The statute defines public facilities very broadly as “any public institution, public facility, public equipment, or any physical asset owned, leased, or controlled by this state or any agency or political subdivision thereof.” So it would forbid abortion in the Truman Medical Center in Kansas City—where 97 percent of all hospital abortions at sixteen weeks or later in Missouri were performed in 1985—in spite of the fact that the center is a private hospital staffed mainly by private doctors, and administered by private corporations, just because that hospital is located on ground leased from a political subdivision of the state.27

Missouri defends the provision by appealing to earlier decisions of the Supreme Court. In Maber v. Roe,28 the Court sustained a state’s right to provide medical assistance funds for childbirth but not for abortion, and in Poelker v. Doe29 it allowed a state to provide childbirth but not abortion facilities in a public city hospital. The Court said that although a state may not forbid abortions, it need not go into the abortion business itself. It might constitutionally adopt a preference for childbirth to abortion, and provide funds only for the former.

The decisions in the Maber and Poelker cases have been criticized because they permit states to take action to discourage people from exercising their constitutional rights. But even if we accept these decisions as sound they do not support Missouri’s broad prohibition. Of course a state need not subsidize or support the exercise of every constitutional right, and it may pursue policies of its own choice in the benefits it awards. It may without violating anyone’s rights to free speech publish literature encouraging conservation while refusing to distribute other political material.

But Missouri’s argument overlooks a crucial distinction. It is one thing for a state to decline to participate in some act it disapproves in circumstances in which it would itself be the author of the act, or would plausibly be taken to be, if it did. A state, for example, may refuse to distribute political criticism of its own government without violating anyone’s rights to free speech. It is quite another thing for a state to use its economic power or control of crucial resources to discourage citizens from exercising their constitutional rights when there is no question of the state being seen as the author of, or as in any way supporting, what they do. A city cannot force news-stands in shopping centers built on public land to sell only papers it approves. It cannot force theaters it supplies with water and power and police protection to perform only plays it likes.

Perhaps a state that itself pays for abortions, or provides them in free public hospitals, will in effect have declared itself neutral between abortion and childbirth, or will be understood to have done so. For the state is necessarily the author of its own public funding and public medical provision. But it is preposterous that a state should be understood as itself performing abortions carried out by private doctors on their own initiative and paid for with private funds, just because the hospital in which this is done is in other ways state-supported, or because it is on land the state, as it happens, owns.

The true explanation of why Missouri adopted its stringent prohibition is not, of course, that it wants to avoid declaring itself neutral about abortion, but that it wants to make abortion as difficult and as expensive as possible, in order to discourage its residents from exercising their constitutional rights. It enacts whatever measures to that end its officials can devise and the federal courts have not yet condemned, including measures so obviously unconstitutional that its lawyers do not seriously defend them when they are challenged. That is impermissible: a state must not declare war on its own people because it is angry that the law is on their side.

Unhappily, if the Court in any way now signals itself more ready to accept constraints on abortion than it has been in the past, that dismal spectacle will continue. Other states will adopt more and more restrictive statutes to provoke more and more test cases to see how far the Court will actually go. Charles Fried anticipated exactly that at the close of his oral argument. He asked the justices, even if they did not overrule Roe v. Wade, at least not to say anything “that would further entrench this decision as a secure premise for reasoning in future cases.” The justices would do best for constitutional order and decorum, as well as principle, if they refused to take that bad advice.

  1. 20

    The historians’ brief described in note 10 above argues that these statutes were motivated by concern for the safety of women, for doctors, and for the birth rate of nonimmigrants, which would not be permissible justifications for anti-abortion laws now.

  2. 21

    The importance of resemblance and of understanding the Court’s concern with viability in that light is skillfully analyzed by Nancy Rhoden in “Trimesters and Technology: Revamping Roe v. Wade,” Yale Law Journal, Vol. 95 (1986), p. 639.

  3. 22

    Cases in which a threat to the mother’s life or the fetus’s development is noticed only after viability require different constitutional treatment, as the Court noticed in Roe v. Wade.

  4. 23

    Ninety percent of abortions are performed during the first trimester of pregnancy, only 1 percent after twenty weeks, only .01 percent in the third trimester. See “Brief of the American Medical Association (and several other medical groups) as Amici Curiae in Support of Appellees.”

  5. 24

    For an account of the courts’ traditional role in making principle administrable as a matter of strategy, see Lawrence Sager, “State Courts and the Strategic Space Between the Norms and Rules of Constitutional Law,” Texas Law Review, Vol. 63, p. 959.

  6. 25

    One hundred and forty United States senators and congressmen filed an amicus brief in Webster v. Reproductive Health Services arguing that respect for law would be weakened if Roe v. Wade were overruled.

  7. 26

    See Gary B. Gertler, “Brain Birth: A Proposal for Defining When a Fetus Is Entitled to Human Life Status,” Southern California Law Review, Vol. 59, p. 1061.

  8. 27

    See Brief for the Appellees in Webster v. Reproductive Health Services, p. 48.

  9. 28

    Maber v. Roe, 432 U.S. 464 (1977).

  10. 29

    Poelker v. Doe, 432 U.S. 519 (1977).

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