Shaky Basis for a Constitutional 'Right'
By Kermit Roosevelt
Wednesday, January 22, 2003; Page A15
(Editor's note: Roosevelt does not mention that equal protection of the laws might be afforded to a fetus as well as a woman. As to signing organ donor cards for reference after death, a woman could sign a donor card for a fetus before an abortion since a fetus is incapable of making such a choice and has no "living will".)
Today, as on past such anniversaries of the decision, marchers will take to the streets to celebrate or decry the 30th anniversary of the Supreme Court's decision in Roe v. Wade. Each group will see Roe as central to its cause, either the key to constitutional protection for a woman's right to choose or the illegitimate imposition of the moral preferences of an activist, unelected judiciary. And both of them will be wrong.
For years now, there has been a serious disconnection between the popular perception of Roe and its standing among constitutional law scholars. It is now time to address that disconnect; it is time to admit in public that, as an example of the practice of constitutional opinion writing, Roe is a serious disappointment. You will be hard-pressed to find a constitutional law professor, even among those who support the idea of constitutional protection for the right to choose, who will embrace the opinion itself rather than the result.
This is not surprising. As constitutional argument, Roe is barely coherent. The court pulled its fundamental right to choose more or less from the constitutional ether. It supported that right via a lengthy, but purposeless, cross-cultural historical review of abortion restrictions and a tidy but irrelevant refutation of the straw-man argument that a fetus is a constitutional "person" entitled to the protection of the 14th Amendment.
No opinion with such deficiencies could be expected to provide a sound basis for resolution of a hotly contested social issue, and indeed, Roe has aged poorly. The current Supreme Court has all but explicitly discarded the constitutional methodology on which it rests. The idea that unelected judges should consult their inner oracles to decide whether a particular activity unmentioned in the Constitution deserves to be elevated to the pantheon of "fundamental rights" was always problematic. Beginning in 1986, when it refused to create constitutional protection for homosexual sodomy, the court started to hint that it was out of the fundamental rights business. Most recently, refusing to recognize a right to physician-assisted suicide in 1997, the court did not even mention Roe. The era of judicially created fundamental rights is over.
Why, then, does Roe survive? And why would anyone think it should? The answer to the first question is complicated and not entirely clear, depending as it does on the vagaries of the Supreme Court appointment process. The answer to the second is easier. Despite its shaky analytical underpinnings, Roe was a step forward for women's equality, which is undeniably a constitutional value. Overturning Roe, especially as the culmination of a series of appointments made with that aim in mind, would be a terrible affront to the progress we have made toward gender equality.
But the fact that there are constitutional arguments in favor of not overruling Roe doesn't mean the opinion should be celebrated, at least not as anything other than a historical artifact. Roe is an increasingly creaky anachronism, and anyone who cares about a woman's right to choose should seek a sounder constitutional basis for that right. Such arguments have been put forth frequently in the scholarly literature, and most tend to cast the abortion controversy as a question not of liberty but of equality. Unlike the fundamental rights jurisprudence that produced Roe, the right to equal protection of the laws is alive and well in the Supreme Court. This perspective offers a way to go forward.
It could also undo some of the more disturbing consequences of Roe. The opinion polarized the abortion debate and brought an end to a political process that was lurching toward compromise and accommodation of competing viewpoints. By declaring an inviolable fundamental right to abortion, Roe short-circuited the democratic deliberation that is the most reliable method of deciding questions of competing values. Not coincidentally, it also created the radical right-to-life movement almost overnight.
An equality-based approach would not draw such sharp and irrevocable lines. Instead of declaring the existence or nonexistence of fundamental rights, a task to which it is ill suited, the judiciary could assess the reasonableness of abortion restrictions by reference to the degree to which they imposed on women a burden that society's laws did not impose on men. A strong enough belief in the sanctity of life or the protection of children may well justify an abortion proscription. But such a belief will be expressed in other laws, laws that, for example, require drivers to sign organ donor cards and provide adequate pre- and postnatal medical care for women and infants. Without a legal landscape demonstrating a strong and pervasive commitment to the protection of life, an abortion restriction stands out as a burden on women that is acceptable only because women's interests are discounted. A court that assessed abortion restrictions by reference to the surrounding legal landscape could monitor the political process without short-circuiting it; it could prevent discrimination against women while allowing legislatures to express the sincerely held moral beliefs of their constituents.
Roe will always have a place in the story of the struggle for women's equality. But that place is now in the past. It is time to recognize that and to seek out new directions for the future.
The writer is an assistant professor in the University of Pennsylvania Law School.
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