A nation searches for its footing
There was a book published in the 1990s that I never read: “Men Are from Mars, Women Are from Venus.” I felt I didn’t really need to read it. The gist of the book seemed self-evident from the title. Luckily for the author, John Gray, upwards of 15 million people did read it, or, at least, bought it.
In thinking about the current abortion storm set off by a leaked Supreme Court draft opinion, that title somehow popped into my head. It seems to me that Mr. Gray might have been on to something 30 years ahead of his time. In the abortion debate today, we have two sides squared off in an epic battle fighting over different things using different languages.
One side is talking about morality and homicide, the other about equality and privacy.
The communication schism in the abortion universe, however, doesn’t break along gender lines. It would take a social or political scientist to parse that, but I would say the toxic brew we’re all stewing in comprises elements of political party, gender, socio-economic status, and rural-urban demographics.
The short of it is we have protesters menacing Supreme Court Justices at their homes and state legislators in places like Louisiana introducing bills that define all abortions—whether in cases of rape or incest or anything else—as homicide.
Where in the world is this going?
In one sense, the abortion conundrum we face was borne of the Reconstruction Era after the Civil War. Southern states began enacting laws that restricted the civil rights of former slaves. To balance that effort, Congress came up with the 14th Amendment, which states had to ratify if they wanted to rejoin the United States. The first section of it follows:
"All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws … “
When the amendment was ratified in 1868, the intent of it was to prevent the states from infringing on a citizen’s rights without going through the court system. In the century and a half since then, Supreme Court has further expanded “due process” to recognize three elements of the concept: procedural protections, “incorporation of rights against the states,” and “substantive due process.”
The first is what you would expect—right to notice, right to be heard, right to a trial by jury.
“Incorporation of rights against the states” simply means that the Bill of Rights (first Ten Amendments) must be applied not only “against” the federal government but “against” the state governments as well. Basically, states had to recognize the Bill of Rights as state law, too.
Substantive due process refers to the position first adopted by the Supreme Court in the early part of the 20th century that citizens have rights that are not explicitly enumerated in the Constitution but are so “substantive,” or important, that they warrant protection. The “right to privacy” was one such right that the Court recognized in 1965 when it held that states could not ban married couples from using contraception (Griswold v. Connecticut).
In 1967, the right to privacy was cited again in protecting the right of interracial couples to marry (Loving v. Virginia). The right of unmarried couples to use contraception followed in 1972 (Eisenstadt v. Baird). Then came Roe in 1973. Same sex marriage (Obergefell v. Hodges) was affirmed in 2015 under the same reasoning.
In the Roe v. Wade case, the Court held that a woman does have a right to have an abortion under the 14th Amendment’s due process clause (substantive due process and the right to privacy) but that it wasn’t absolute. There would be a timeline (the trimester framework) with which states could regulate abortion. The framework would revolve around “fetal viability,” the point at which a fetus could survive outside the womb (with medical assistance). Justice Blackman noted in his opinion that the point of viability was when a fetus “has the capability of meaningful life outside the mother’s womb.” Medical science has determined that to be at 24 weeks.
Basically, the justices ruled that in the first trimester the state (Texas, in this case) had no say in the matter. In the second trimester and post viability, states could regulate abortions when the health of the pregnant person was involved. In the third trimester, which is beyond the point of fetal viability, states could restrict all abortions save those that were necessary to protect the life of the pregnant person.
Why did the Supreme Court position the right to have an abortion within a time framework?
Texas had argued that life begins at conception, as Catholicism would hold. So, by that line of reasoning, a fetus becomes a “person” with the Constitutional protections that affords. The justices could not find support for that argument in the Constitution, only that those “born or naturalized” (citizenship clause, 14th Amendment) in the U.S. were protected by the Constitution.
They also noted that in contrast to Catholicism, Judaism deemed life to begin at birth, and, further, that doctors, in general, considered life to begin somewhere between conception and birth. So, they tried to find a balance at which point the pregnant person’s rights ended and the unborn fetus’s began. The balance point was fetal viability.
In 1992, the Court upheld the right to abortion under the 14th Amendment in Planned Parenthood v. Casey but refined the Roe ruling to say that before fetal viability, states could not place restrictions that created “undue burdens” on the pregnant person.
Subsequently, there have been other abortion-related cases, but none more consequential than the current one before the court, Dobbs v. Jackson Women’s Health Organization. The case concerns a 2018 Mississippi law (unenforced to date) that bans abortions after 15 weeks of pregnancy. At its heart, the case questions whether the fetal viability framework is a valid means for determining restrictions on abortion.
As most of the world now knows, a leaked draft majority opinion written by Justice Alito appears to short circuit the viability question altogether. It states, in part, “We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision ... We therefore hold that the Constitution does not confer a right to abortion …”
He goes on to write that the issue should go back to the states and let democracy work its magic, one way or the other.
So, according to this draft—which will likely change but not substantially—there is no right to privacy in the due process clause of the 14th Amendment, nor is there other mention of abortion in the rest of the Constitution. Alito’s opinion, if it holds, takes a strict textualist approach that will eliminate the right to privacy, and, by extension, a federal protection of abortion. Consistency of logic would suggest that contraception, same-sex marriage, and inter-racial marriage would also become illegal again.
There have long been textualist and/or originalist justices—those who rely solely on the literal text of the Constitution to make rulings—and those who take a more pragmatic approach and do their best to reconcile a document written 235 years ago with an ever-changing society and slate of issues that didn’t exist then.
One summer day a few years ago, I spent an hour sitting by a pond talking with Supreme Court Justice Breyer, who will retire at the end of this term. He showed up in swim trunks and a t-shirt. I showed up, it turns out, awkwardly overdressed. We talked about these two approaches to the Constitution. He explained that his former colleague and friend, Justice Scalia (now deceased), felt that if judges explored the purpose and intent of a given statute, they would undoubtedly invite subjectiveness into the process.
Breyer said he countered Scalia with a more interpretive approach. “This is a document that is supposed to affect how people live over a long period of time,” he explained to me. “Really, it’s his (Scalia’s) view that he wants clear rules. And he will work pretty hard to get a clear, general rule. But I’ll say, sometimes it’s dangerous to have a rule because situations come up that you never thought of, and it will hit you in the face.”
Like the law professor he once was, Breyer provided an example: “Usually, the word ‘liberty’ is not a problem; that is, understanding the word. What is a problem is understanding the scope of the phrase that uses the word ‘liberty’ in the 14th Amendment ... So, you look at the history of the phrase, to the tradition, the context, purpose—somebody wrote those words, what was their intention? And consequences as viewed through the lens of their intentions.”
What do I think? It doesn’t really matter to anyone what I think, except perhaps to my wife and daughters. But, for what it’s worth:
I think Justice Breyer is right. The framers were brilliant, but they weren’t prescient. In trying to govern a country in a world far different from that of its origins, we have to use some common sense and judgement to find our way. No laws written in the past or future will ever foresee or anticipate the continuous spectrum of greys with which the world presents its problems. Reconciling our laws with the realities of life is not new, but it is necessary.
I also think government is necessary, albeit frustratingly inefficient. Lincoln put it well: “The legitimate object of government is to do for the people what needs to be done, but which they can not, by individual effort do at all, or do so well, for themselves.”
That position notwithstanding, I think that a right to privacy has been a vital foil to government intrusion into private life—whether concerning marital or sexual issues, health information, employment, religion, or reproductive decisions—for almost as long as I have been alive. So, yes, I value it and think it is in keeping with the entire thrust of our Constitution, which seeks to hold a healthy tension between a government and its people. And if there is a right to privacy, then surely what a woman does or doesn’t do with her body falls under it.
Nothing is black and white, especially abortion. No rights are absolute. Restrictions—as there are on the First and the Second Amendments, among others—make constitutional rights workable in a free society.
One must define the point at which a mother’s rights end and the rights of the potential life of a fetus begin. Clearly religion can’t be used to find that point; one could never reconcile the theory of life of Catholicism and Judaism, let alone the dozens, perhaps hundreds of religions out there. Choosing one to establish a restriction is tantamount to establishing a national religion.
I was educated as a scientist and grew up in a medical family, so I put my faith in science to find that point, which happens to be at 24 weeks. That may change as medical science advances; so be it. A fetus with no potential for life outside the womb, with or without medical help, does not equate to life in my view. For others it may, and they should be free to choose not to have abortions.
But liberty—being able to do and say what you want—is fundamentally protected if and only if one’s liberties don’t impinge on someone else’s. A theory of life based on repeatable scientific findings and divorced from all religions—fetal viability—preserves that compact.
Finally, I think Alito’s argument that the issue belongs at the state level for democracy to work out is a bit of a cop out and a straw man of sorts. Perhaps he has been in his chambers too long to notice, but we have gerrymandered ourselves into a panoply of red and blue supermajority states. To further exacerbate the division, people have begun fleeing to states where they see birds of a political feather. So, Alito’s solution of tagging the states “it” ensures we’ll end up with 20 or so states with total abortion bans, criminal charges for physicians, nurses and other accomplices and the balance of states with some legal abortion and varying restrictions. It wouldn’t be much fun living in a nation like that. What’s more, it doesn’t sound much like “… equal protection of the laws,” words that definitely are in the Constitution.
If our Constitution is about anything, it is about balance. It is about balancing government and the people, federal government and state government, the three branches of government, majority rule with minority rights, liberty and equality.
Right now, an entire nation of people seems unsteady. But we better find our balance soon. Get too far out of balance and, like the old nursery rhyme says, “Ashes, Ashes, We all fall down.”
My inbox gets a well reasoned and balanced essay on a salient and critical issue; my polling place offers candidates who excell at verbal buffoonery and bloviated mendacity.
Adam, have you considered a 3rd act?
Great article, Adam. We’ll -written and very insightful.