The Constitutional Basis for Roe v. Wade
Last fall I read What Roe v. Wade Should Have Said, a collection of contemporary constitutional scholars writing Roe opinions using information/sources only available at the time of the landmark 1973 case. As someone who hates both legalese and snooty academic writing, I was a little worried this was going to be a slog. Thankfully, most of the opinions in the book are clear and easy enough to follow. Given this week’s leak of Justice Alito’s draft majority opinion striking down Roe, I thought it would be good to talk a little bit about what I learned from What Roe v. Wade Should Have Said.
The book has a total of 11 opinions, eight in favor and three dissenting. I noticed four main threads among the concurring opinions:
the right to privacy and medical choice
equality
liberty
a fetus is not a person and therefore does not have the same protection as a person under the law
So let’s talk about each of these in order. We’ll start with the right to privacy and medical choice. The main takeaway here is that Roe v. Wade was not the first case to rule in favor of privacy and medical choice, but rather a continuation of the Supreme Court’s trend to offer more and more freedom to individuals. 1942’s Skinner v. Oklahoma ex rel. Williamson is a good place to start. In the Skinner case, the Court ruled that Oklahoma’s forced sterilization of certain offenders was unconstitutional because it violated the Equal Protection Clause (more on this in a sec). This ruling is important for two main reasons: One, it built off an earlier case to expand the definition of “freedom” to encompass procreation/having children, and two, it set a precedent that laws which denied some people basic human rights (but not others) violated the Equal Protection Clause.
Let’s pause here for a moment and talk about the Equal Protection Clause, because it’s extremely important — not only for Roe but for other landmark cases as well, such as Brown v. Board of Education. The Equal Protection Clause is Section 1 of the 14th Amendment. (And if you’re thinking that sounds kind of familiar, that’s because just a couple weeks ago I wrote about Section 3 of the 14th Amendment.) Here is Section 1 of the 14th Amendment in full:
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.
As I mentioned in my last article, the 14th Amendment was passed in 1866 and ratified in 1868. It is a direct response to the Civil War, and you can see in its language how it provides equal protection to all persons born or naturalized in the United States. So that’s the Equal Protection Clause. It’s the crux of many, many civil rights the Supreme Court has ruled on since.
Let’s go back to the series of cases that led to Roe. There was the Skinner case which ruled that Oklahoma’s sterilization of certain people (but not others) violated the Equal Protection Clause, and also that personal freedom includes the right to have children. Next up is 1965’s Griswold v. Connecticut. This case overturned a Connecticut law which prevented married couples from using contraception of any kind. The Court reasoned that if forced sterilization was illegal, then it would also be illegal to force couples to have children — in both cases, personal freedom is inhibited. Moving ahead to 1972’s Eisenstadt v. Baird, the Court took the Griswold decision and extended it to non-married couples.
So, as you can see, Roe was not the first case to rule in favor of a person’s right to privacy and medical choice. It was not a starting point, but a point along a spectrum. I think this is important to point out because discussions around Roe often make it sound like the Court either went rogue or made some kind of unprecedented ruling — neither of which is true. The constitutional basis for Roe extends beyond the case itself.
Next up: Equality and Liberty. I’m bundling both of these together because they’re somewhat similar and have overlapping arguments. As you’re probably already thinking, prohibiting access to abortions is both a violation of the Equal Protection Clause, as well as a restriction on a woman’s liberty. A key point here is that limiting access to abortions isn’t only about curtailing individual freedom, but also that it limits access to safe abortions. One of the recurring arguments in the book that isn’t grounded in legal precedent is that making abortion illegal doesn’t mean abortions will suddenly disappear. Instead, it means more women will resort to riskier methods of ending an unwanted pregnancy. This makes it an even worse affront to a woman’s right to equality and liberty, since I hope we can all agree that health and well-being are part and parcel of “liberty” or “equality.”
The fourth common thread in the concurring arguments is my favorite: a fetus is not a person and therefore does not have the same protection as a person under the law. This one is interesting because I didn’t see it mentioned when I skimmed Alito’s draft opinion. Although it seems to ground a lot of pro-life arguments, it doesn’t hold a lot of legal weight, which is why I’m guessing Alito doesn’t focus on it. But there are a couple threads to this argument, so let’s look at them now.
First, as Reva B. Siegel writes in her concurring opinion, “Whatever respect for unborn life abortion laws express, state criminal laws have never valued unborn life in the way they value born life. States have never treated women who seek to abort a pregnacy as they would a woman who was seeking to murder a born person” (80). She goes on to argue that “[states] have used the criminal law to coerce and intimidate women into performing the work of motherhood” (80). So, again, from a legal standpoint a fetus doesn’t have the same protection as a human, and by forcing women into becoming mothers, that’s another major violation of their liberty.
The second thread to this argument is one you’ve probably heard before. I’ll let Jed Rubenfeld take this one, as he explains in his concurring opinion: “Texas argues that a single-celled human zygote — the fertilized ovum — is a person, or independent human being, from the moment of conception, or at any rate that state legislatures may so conclude and, on this basis, ban abortion no matter how early it occurs in a woman’s pregnancy” (113). Rubenfeld dismantles this argument: “Texas’s position seems to be that, where no bright line interrupts a gradual process of change, the two end points may be deemed equivalent… Texas’s argument rests on a fallacy. It confounds the potential with the actual. It conflates the seed with what the seed may one day become” (114). Rubenfeld ends by saying: “To be sure, unlike an ordinary blood cell, the zygote is part of a human being’s life cycle. This is a very important difference, but, again, it does not make the zygote a human being. A caterpillar is part of a butterfly’s life cycle. It is not, however, a butterfly — any more than an acorn is an oak” (115).
Michael Stokes Paulsen, one of the contributors to the book who writes a dissenting opinion, attempts to rebut Rubenfeld’s argument. Paulsen says: “I note that a planted acorn is an oak tree seed and thus is an oak tree, just one at an early stage. And, I reiterate, a human embryo is a human being embryo. It is the same human being it will later be, just at an earlier stage of development” (217). The thing is, though, an early stage human is not the same as a fully grown human, or even a just-born human. To continue this analogy about acorns and trees: you can’t make paper with an acorn because it isn’t a tree, and removing a bunch of planted acorn seeds isn’t the same as deforestation.
Thus, there are two forks to this argument: a fetus is not a human and therefore doesn’t have the same rights as a human (what Rubenfeld argued), and also that in legal terms a fetus has never had the same protection as a human (what Siegel argued).
All four of the threads I’ve discussed so far provide compelling and strong support for the Roe decision. But what about those three dissenting opinions? Let’s look at those briefly as well.
One author dissents on moral grounds — she thinks abortions are immoral or “wrong.” This is the weakest dissent because, regardless of where one places abortion on a moral continuum, it has no bearing on abortion’s legal standing.
Another contributor dissents because he argues that the states themselves should repeal anti-abortion laws, not the Supreme Court. This is a valid argument, but it works better in theory than in practice. As Alito wrote in his draft opinion: “Roe and Casey [a 1992 case which upheld the right to an abortion] must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives” (65). The problem, of course, is that the Supreme Court and many Republican-controlled state legislatures have severely curtailed voting rights. Not only have they made it harder to vote, they’ve also made it possible for Republicans to gerrymander maps to ensure a majority of representation. The system is rigged, so saying we can solve this problem by voting is a little like a casino telling us the best solution to losing our money is to keep gambling until we win.
The third and final dissent is the one that Alito leans on the most in his draft opinion. This argument is pretty clear and direct: nowhere in the Constitution itself does it provide the right to an abortion. The only reason this is a problem is that the majority of Supreme Court Justices are now originalists — people who interpret the Constitution based on its original meaning at the time it was adopted. It hardly seems worth mentioning why taking a 235-year-old document literally is maybe not the best idea, but here goes: there are things the Founding Fathers couldn’t imagine (the internet! germs!), there are things the Founding Fathers found acceptable that we no longer do (slavery!), the Founding Fathers were bad writers (the text is often unclear and very much open to interpretation!), and laws change (that’s why we have amendments!). So why the fuck would you read the Constitution literally?
I’ll leave you with a great tweet I saw earlier this week that I think sums it up well:
