Abortion and Democracy

 

By Robert Katz

 The issue of abortion is hard from a legal standpoint, because most questions in a democratic society are supposed to be resolved democratically, through elected representatives, with only a few fundamental rights cordoned off from legislative interference.  The clauses in the Fifth and Fourteenth Amendments forbidding government deprivation of life, liberty, or property without due process of law has been interpreted to safeguard certain rights so fundamental to human freedom and dignity that no amount of due process can justify their deprivation. Determining whether abortion rights fit into that narrow category is the crux of the hard issue.

 One of the most striking things about Dobbs v. Jackson Women’s Health Center, the recent opinion purporting to end the federal constitutional abortion right, is that Justice Alito doesn’t breathe a word about the imposition that an abortion ban would have on women’s liberty. He doesn’t have to, because he would only acknowledge liberty interests that were historically recognized at the time the Constitution was ratified in 1788 or the Fourteenth Amendment enacted in 1868. The Dobbs opinion, hermetically sealed in doctrinal abstraction, doesn't have to contend with the bleak and sometimes ugly reality of state-mandated pregnancy.

 As many have noted, this kind of originalist reasoning is a particularly poor method of determining whether the abortion right should be constitutionally protected. The world in which the original Constitution and the Fourteenth Amendment were made was one in which women were third class citizens, without the right to vote and generally with a limited right, if any, to own property or enter into contracts without their husband’s consent. Women were prized largely for their traditional role of bearing and raising children, so why should they have a constitutional right to abort a child?

 The better method is simply to look, with 21st century eyes, at the degree to which an abortion ban intrudes on a women’s liberty, to see whether that intrusion is so severe and so exceptional that it warrants constitutional protection. Looked at that way, the answer is fairly clear: Is there currently any other law that so infringes on personal freedom as compelling a woman to undergo the (sometimes grave) risks, hardships and inconveniences of carrying a child to term? Is there any measure so evocative of authoritarian government as that of the state stepping in at, or shortly after, the moment of conception to force a woman to bear and raise, or relinquish, a child? As the court said in Planned Parenthood v Casey (1992), the suffering of a mother who carries a child to full term “is too intimate and personal for the State to insist...upon its own vision of the woman’s role, however dominant that vision has been in the course of our history and our culture.”

 But this is only part of the story. Constitutional reasoning requires us to ask if any state interest is sufficiently strong to justify such a drastic incursion on a women's liberty. For example, there is one area of state compulsion even more onerous than an abortion ban, and it is in fact targeted exclusively toward men: the military draft, which required a young man to sacrifice years of his life, and perhaps his life itself, for his country. The draft was challenged during World War I as an unconstitutional form of involuntary servitude under the Thirteenth Amendment, a challenge rejected in the 1918 Supreme Court case, Arver v. United States. The court’s rejection was based largely on its conclusion that Congress’s explicit constitutional prerogative to raise armies in Article I, Section 8, included the capacity to impress men into military service.

 No comparable interest justifies the intrusion into liberty of an abortion ban. Stripped of all rhetoric, the government’s interest in such a ban is to impose on all women the view of a minority: that from the moment of conception, the fetus is an “unborn child.” Yet the answers to the questions surrounding abortion are deeply contested. They are questions on which science is silent and religion has a great deal to say. Contrary to the moral absolutism that drives the anti-abortion movement, the question whether, for example, a fetus in the first trimester, before it has become sentient, has a right to live that outweighs the mother’s needs, is a matter on which people attempting to lead moral lives have answered in a variety of ways. Far from justifying the intrusion on women’s liberty of an abortion ban, this imposition of a one-fits-all view compounds the intrusion. It is trespassing not only on a woman’s physical autonomy and ability to make basic life choices, but also on her ability to decide difficult questions of conscience according to her own moral lights. As the court said in Casey, although “[i]t is conventional constitutional doctrine that where reasonable people disagree the government can adopt one position or the other” that is not the case when the choice “intrude[s] upon a protected liberty. Thus, while some people might disagree about whether or not the flag should be saluted, or disagree about the proposition that it may not be defiled, we have ruled that a State may not compel or enforce one view or the other.” So it should be with abortion.

 Abortion is one issue where the democratic ethos of respect for the dignity of the individual  means that women and their doctors, not legislatures, should make the decisions. But if, after Dobbs, the right to an abortion must be put to a vote, either in the states or in Congress, then electoral success can put that right on a more secure footing, and out of the reach of ideological judges.

 Robert Katz served as a staff attorney and supervising attorney at the California Supreme Court from 1993-2018. Before that he was in private practice representing public agencies, and worked as a newspaper reporter covering local government in Santa Cruz County.

 

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