Conservatives find the first question, about whether the Constitution protects abortion rights, laughable: Of course it doesn’t, they say. Justice Clarence Thomas put it bluntly in a dissent last year, when the court narrowly struck down a Louisiana abortion law. “The idea that the Framers of the Fourteenth Amendment understood the Due Process Clause to protect a right to abortion is farcical,” he wrote. “It would no doubt shock the public at that time to learn that one of the new constitutional Amendments contained hidden within the interstices of its text a right to abortion. The fact that it took this Court over a century to find that right all but proves that it was more than hidden — it simply was not (and is not) there.”
I couldn’t disagree with this more — but it is not by any means a crazy point of view. If you believe that the Constitution should be strictly construed based solely on the language of the text, the history leading up to it, and the understanding of the Framers, abortion is a constitutional no-brainer — it’s not up to judges to say, and the court had no business constitutionalizing the issue in Roe v. Wade.
Still, that cramped vision of the judicial role isn’t the only way of interpreting the intentionally capacious phrases of the Constitution. As Justice Felix Frankfurter, a noted advocate of judicial restraint, explained in 1949, the Framers understood when to be specific, and when to be vague. “Great concepts like ‘Commerce among the several States,’ ‘due process of law,’ ‘liberty,’ ‘property’ were purposely left to gather meaning from experience,” he wrote.
Justice John Harlan, no raving liberal, put it well in his famous dissent in 1961′s Poe v. Ullman. “The full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution,” he wrote, in another passage quoted 12 years later in Roe.
No one reads the Constitution and concludes: This document obviously protects a woman’s right to choose. Yet the court has long interpreted the due process clause to protect substantive rights, not just mandate procedural fairness.
The right to abortion flows logically, if not ineluctably, from this understanding: that women have the right to control their own bodies. If the choice about whether to beget or bear a child is not up to the woman, could the government compel women to abort fetuses with genetic deformities? Could parents force their minor daughters to terminate pregnancies?
As the court has said, the government has an interest in protecting fetal life — just not one that can supplant a woman’s decision to terminate a pregnancy before the fetus is viable. You may believe that the fetus is a person from the moment of conception; that is a sincere, laudable conviction. But it is not yours to impose on me if my moral judgment differs.
The Constitution protects federalism and the autonomy of states, sure. But at its heart, the Constitution elevates the freedom — the liberty — of individuals, not majorities.
As with the constitutional question, the leave-it-to-the-states-and-the-democratic-process question has two sides, but ultimately fails. Perhaps there was a time when citizens, reasoning together, could have come to some reasonable compromise on abortion rights. Most Americans, after all, believe that abortion should be available in certain circumstances and in the early stages of pregnancy.
But we are now past the point of accommodation; there is simply no give on the side of those who believe that life begins at conception and that abortion, therefore, is tantamount to murder. If there were a moment, before Roe, that the country could have come together, state by state, to hash out reasonable abortion restrictions, it has long passed. The issue is too divisive, the antiabortion forces too activated, to settle for half measures if total victory is achievable.
Ten states already have “trigger” laws on the books that would ban abortion if Roe were overturned. Another nine still have their pre-Roe abortion plans in place and ready to be enforced. This does not portend a Europe-like landscape, where abortion is for the most part readily available, at least in the earlier stages of pregnancy.
Already in the United States, an obstacle course of mandatory waiting periods and counseling sessions, onerous licensing requirements and other restrictions have made the procedure difficult if not practically impossible for women to access in many states.
Returning the decision to the states would usher in an even more dangerous patchwork of some states that allow abortion, some that severely restrict it, others that impose outright or close to total bans. And this patchwork would operate to the particular detriment of poor women. Those with means will always be able to obtain abortions.
The decision whether to terminate a pregnancy shouldn’t be a matter for majority rule; this is the most intimate of personal choices. Leaving abortion regulation entirely up to states wouldn’t make them laboratories of democracy. It would empower them to be agents of oppression.