A Response to Steve Knight’s “Where I Stand Today on Abortion” — Part 2
Roe v. Wade
In 1973, the US Supreme Court decided, in the case of Roe v. Wade, that the US Constitution guaranteed women unimpeded access to abortion at any time right up to birth. While technically Roe allowed for some legal restrictions in the last trimester, even those were made meaningless by Doe v. Bolton, decided the same day and supported by the same five justices who supported Roe. Among other things, Doe established that a woman’s physician could, with no guidelines or restrictions, use any criteria to decide that the woman’s health was at risk, so justifying an abortion right up to the time of birth.
Steve Knight says that, while he used to believe Roe should be overturned, he has changed his mind and now supports it. Here are the points that appear to specifically relate to Roe:
Steve believes that overturning Roe would be an undemocratic abuse of judicial power. He says, “the dominant narrative right now, in my opinion, is simply one of fear that suggests the only/best solution is to get conservative judges on the Supreme Court so that they can legislate from the bench.”
Response: that’s a strange argument since the original decisions did exactly that, legislate from the bench, and have been heavily criticized even by some pro-choice advocates on that ground. In the period leading up to Roe, the issue was being debated and decided by the political process state by state. Roe took the issue out of the hands of elected representatives and decided it by judicial fiat.
Here are some quotes from Benjamin Wittes, a fellow of the Brookings Institutions who favors liberal abortion laws. He makes these points in the context of an article whose overall point is that the pro-choice position and liberalism have been seriously harmed by Roe and the controversy it has engendered.
Still, the liberal commitment to Roe has been deeply unhealthy—for American democracy, for liberalism, and even for the cause of abortion rights itself.
Since its inception Roe has had a deep legitimacy problem, stemming from its weakness as a legal opinion. Conservatives who fulminate that the Court made up the right to abortion, which appears explicitly nowhere in the Constitution, are being simplistic—but they’re not entirely wrong. In the years since the decision an enormous body of academic literature has tried to put the right to an abortion on firmer legal ground. But thousands of pages of scholarship notwithstanding, the right to abortion remains constitutionally shaky; abortion policy is a question that the Constitution—even broadly construed—cannot convincingly be read to resolve.
The [constitutional] right to abortion remains a highly debatable proposition, both jurisprudentially and morally. The mere fact that liberals have to devote so much political energy to pretending that the right exists beyond democratic debate proves that it doesn’t.
Steve says abortion is “national issue that requires a national solution.”
Response: There is no reason to say this for the particular issue of abortion. One could say the same thing for crime, health care, education, drunken driving, homeless, and anything else. For better or worse, the American system is built on an evolving balance of state and federal powers and the abortion issue is mostly in the areas regulated by states. Again, even pro-choice Wittes feels that the cause should be argued in the states in a democratic process:
In the absence of Roe abortion rights would probably be protected by the laws of most states relatively quickly.
… In short, overturning Roe would lead to greater regional variability in the right to abortion, but this would be a worthwhile price for pro-choice voters to pay in exchange for greater democratic legitimacy for that right and, therefore, greater acceptance of and permanence for it.
More importantly, though, asking for a national solution does not mean much without specifying what the solution will be. Would Steve Knight be willing to accept as a national solution a “Right to Life” constitutional amendment?
Steve says, “While the partial-birth abortion ban is a good thing, I would personally support a late-term abortion ban, covering other methods”
Response: a ban on late-term abortions would require overturning Roe, which guarantees an absolute right for the woman to end her pregnancy up to the moment of birth. The ban on partial-birth abortion was upheld in part because the Court found that there were other, equally effective, ways of killing the maturing fetus.
Let’s take a bit more detailed look at the cases. First, you might think I’m exaggerating when I say the the Court established the woman’s right to abortion right to the time of birth. Didn’t it allow for unrestricted abortions only in the first trimester, with some restrictions possible in the second, and with the states able to impose limits in the last trimester? Yes, but …
- In the first trimester the decision is left to the woman and her physician: no surprises here.
- From the beginning of the second trimester to the point of viability (generally considered the end of the second trimester at the time), the State can “regulate the abortion procedure” to protect maternal health, perhaps, for example, by requiring a certain standard of available medical support.
- After viability, when the fetus could live if born, the State may regulate or even forbid abortions “except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” As I said above, Doe v. Bolton established what was meant by the health exception: the mother’s health concerns are whatever her doctor says they are, including “all factors - physical, emotional, psychological, familial, and the woman’s age - relevant to the wellbeing of the patient.”
In reality, then, Roe and Doe together guarantee that a woman can have an abortion up to the time of birth, for any reason, as long as her physician (who may be the abortion doctor) agrees.
Didn’t the Court uphold state requirements for parental consent in minors, and such restrictions?
Before viability, regulation is allowed, in the sense of making sure things are done “properly,” as long as such regulation does not impose an “undue burden” on the woman’s right to an abortion. Planned Parenthood v. Casey (1992) tried to clarify what regulation is allowed, and upheld the constitutionality of requirements for parental consent, informed consent, and 24-hour waiting period, but struck down the requirement for notifying the husband. (see Wikipedia article). The key difference between the spousal notification requirement and the others was that the Court found that the former would prove to be an “undue burden” on the woman’s right to choose to end her pregnancy.
What about the partial birth abortion? The Supreme Court upheld the ban on that.
Yes, the Court decided last year in Gonzales v. Carhart that the US act forbidding partial birth abortion was constitutional. However, a crucial basis of this decision was that there were other ways of killing the baby (or fetus, if you prefer) even up to the moment of birth. Primarily, “The Act prohibits intact D&E [partial birth abortion]; and, notwithstanding respondents’ arguments, it does not prohibit the D&E procedure in which the fetus is removed in parts.” In other words, the ban does not impose an undue burden on the woman because the baby can always be taken out in pieces rather than whole.
A general ban on late-term abortions, or even any obstacle that would “unduly burden” the woman, would be flatly unconstitutional as Roe and Doe stand.
Conclusion
Opinion surveys of Americans generally show that a minority favor unrestricted abortion, a minority favor completely outlawing abortion, and a larger group favor abortion in some cases. It is true, then, that a complete ban on abortions would not be “the will of the people.” On the other hand, Roe takes the opposite extreme position, a position also opposed by most Americans, such as those like Steve Knight who oppose late term abortions.
As Wittes points out, overturning Roe would, far from outlawing abortion, put it on a more solid democratic basis. It has been said that if Roe is overturned, the US will be the only democratic country to have outlawed abortion. This is not so, since the question would be simply thrown into the political process. It would also be fair to point out that the US is the only country to have legalized abortion by going around the legislative process.
Whether you support a complete ban on abortion or a limited right to it (say, up to 20 weeks, with exceptions beyond that for serious health risk to the mother), Roe is the obstacle that stands in the way.
References:
Benjamin Wittes, “Letting Go of Roe,” The Atlantic, January/February 2005.
See links to the court cases discussed.
Tags: abortion
September 15th, 2008 at 3:04 am
Mike,
Thank you so much for engaging this issue with me and providing this excellent analysis and feedback for me (and others who are reading)! You’ve provided a wonderful example here of online discussion, which is completely respectful of me (as the person whose ideas you are critiquing/pushing back on) and yet clearly and concisely, even compellingly, shows another way to think about an important issue, such as abortion.
I need to ruminate on all that you’ve written here a bit more, but based on my first reading I already feel quite persuaded by your argument.
The one small piece of pushback (which isn’t really pushback, merely clarification) is on the point of “legislating from the bench”: My reason for pointing that out in my original blog post was to expose the irony on the part of many anti-abortion activists who deride the “activism” of the Court that led to a decision such as Roe, but who, in the next breathe, advocate for their own form of activism in appointing conservative judges who will overturn Roe. One form of “legislating from the bench” is clearly seen as “right” and the other clearly seen as “wrong,” but it seems pretty hypocritical to me (and others).
But perhaps I’m straining at gnats with that point. The larger problems with Roe, which you’ve ably articulated here, and the viable alternatives that exist are helpful to understand more fully. I still question (if Roe were to be overturned) how workable it would really be to have different abortion laws state-by-state. And what exactly would a national “Right to Life” constitutional amendment entail? Would it represent “the will of people” by allowing abortion in some cases? Or not? I guess I haven’t seen much advocacy for such an amendment, so I don’t know what to think of it at this point.
Thanks again for sharing your wisdom on this issue and helping me move forward in my own thought process on this. I’m deeply grateful to you for this.
Shalom,
Steve K.
September 15th, 2008 at 7:45 am
Thanks for the feedback, Steve. On the issue of judicial activism, I think there’s an important distinction here. Roe created a new legal principal, overriding the then-active political process. In contrast, overturning Roe would not make abortions illegal—it would not directly create new policy. Rather, it would simply restore the question to the political process.
Putting the issue back to the people, into the political process, is what a realistic “Right to Life” amendment would do. In my post above, though, I was thinking more in terms that you would likely not support a highly restrictive amendment, i.e. a ban on abortion. I think it’s extremely unlikely that such a ban could be imposed by either the Supreme Court or Congress, given the fact that such a majority would oppose it (part of Wittes’ argument).
The amendment movement was apparently most active in the 1970’s & 1980’s. Wikipedia lists 7 “major” amendments, of which 4 simply put the decision back into the legislative arena. The only amendment to reach the floor of Congress, according to Wikipedia, was the Hatch-Eagleton Amendment, which simply stated, “A right to abortion is not secured by this Constitution,” taking us back to the day before Roe.