A More Productive Abortion Conversation
by ELISABETH LUNTZ
Screen Shot 2021-02-04 at 4.56.03 PM
The abortion debate in America is broken. The public debate has been reduced to meaningless slogans and dog whistles that polarize us into our tribes. While "Roe v. Wade" is the go-to catch-all phrase that reliably triggers people to their predictable political camps, few understand why the Supreme Court made abortion a Constitutionally protected right in 1972. Only within the framework of Constitutional reasoning can we fight ourselves out of this corner. Legally trained politicians know the battle for reproductive autonomy is in the courtroom and that keeping the public polarized on emotional arguments distracts them from the real game. Roe v. Wade was built on the foundation blocks of the Ninth and Fourteenth Amendments to the United States Constitution. We need to educate ourselves about these foundational laws. Only then, can Americans approach the abortion problem with any hope of resolution.
While most Americans have a strong opinion of the 1973 Roe decision, very few understand the case. In Roe, the Supreme Court reviewed a lower court ruling which struck down a Texas abortion statute banning all abortion except in the narrow instance of when the life of the mother is threatened. The Supreme Court held that it must do so because of the the Ninth and Fourteenth Amendments as follows:
Enumerated rights are those rights explicitly set forth in the Constitution-such as religious freedom, freedom from government establishing religions, the free press, right to trial by jury, right to petition the government for a redress of grievances, etc. Relevant to the issue of abortion, the Supreme Court has also recognized certain rights that are not explicitly set forth in the Constitution-such as the right to travel, the right to vote, and the right to privacy. It is not surprising that a document written 231 years ago by a group of all-white property-owning men fails to explicitly recognize all inherent rights, especially the rights of Blacks or women. As society has grown in its valuation of marginalized populations, the Supreme Court has expanded the Constitution's protection of enumerated and unenumerated rights to the full spectrum of citizenry. The Constitution is alive.
Following the logic of previous Supreme Court decisions (such as a Connecticut case legalizing birth control for married women), in Roe the Supreme Court held that each American has a fundamental right to personal privacy, even though the Founders did not mention this right in the Constitution. In Roe, Justice Blackmun, writing for the Court, held:
The Supreme Court concluded that the individual's right of personal privacy must include a decision regarding abortion. This privacy right is not absolute. Important state interests are also at play and the Supreme Court allowed laws to regulate abortion services-so long as such laws did not amount to an effective ban.
In recognizing the state interest in regulating abortion, the Supreme Court requires states to show the compelling interest they have in creating the law and forces them to narrowly tailor the law to protect the compelling interest and avoid unnecessary government intrusion in our lives. If there is not a clear reason for the regulation, it is thrown out. If the law is wider than necessary to address the reason, it is also thrown out. The decision leaves the State free to place increasing restrictions on abortions as the period of pregnancy lengthens, so long as those restrictions are tailored to recognize state interests.
The Texas legislature gave three reasons for enacting its wide-ranging abortion ban. The first reason was to protect pregnant women from a then-dangerous medical procedure. This, the Supreme Court held, was a valid concern and state regulation should certainly address medical safety. However, the law was both clumsy and becoming less relevant as the medical field advanced.
The second reason given by Texas for its abortion ban was to discourage sexual activity outside of marriage. Texas argued that because sex can result in pregnancy and because children born out of wedlock have been measured to be at a higher risk in a number wellness statistics, the state should enact laws to discourage sex outside of marriage-including a ban on abortion. If unmarried persons knew they would be forced to carry a distressed pregnancy to birth, they might avoid having. The Supreme Court had previously struck down laws punishing sex outside of state-recognized marriage and laws banning birth control. In Roe, the Court held that the State's compelling interest in promoting children being born into married family units might be valid, but an abortion ban was, again, not narrowly tailored to fit the policy goal. The first problem with this reasoning is that a baby should not be a punishment to enforce morality. Another flaw in the strictly punitive approach to abortion is that poverty largely increases rates of abortion and divorce. Therefore, it makes more sense to address poverty because it is a root cause of abortion. Excessive abortion is a symptom of a sick society; society that can't or won't afford for human life to thrive. Abortion is not a preferred form of birth control for any woman.
Finally, Texas claimed it had a state "duty" to protect prenatal life. Some have believed that a firm certain determination must be made of when life actually begins before the government may step in with regulation. Justice Blackmun disagreed:
The last 59 years of abortion-related litigation can be summarized as conservative Christian legislatures testing the proper boundaries of governmental interest to restrict our inherent right to privacy.
Roe also held that Texas' statute violated the Fourteenth Amendment's protection of substantive due process which protects individuals from the unreasonable loss of important rights such as privacy. Substantive due process is a complicated legal concept built from hundreds of Supreme Court cases that upholds the rights of free Americans to be free of government overreach. Justice Blackmun noted that several previous holdings by the Court made clear that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process clause, specifically, he said, "the right of the individual married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person."
The language coming from our Utah's Congressional delegation is too often devoid of this Constitutional context. Burgess Owens vows to, "re-ignite our duty to protect and defend the lives of every innocent and unborn child." This type of rhetoric is unhelpful in either reducing abortion or attracting support from informed voters. Thomas Jefferson warned, "Freedom is lost gradually from an uninterested, uninformed, and uninvolved people." It is important to be understand the legal Constitutional issues underlying the abortion debate. With this knowledge we are empowered to comprehend and participate in the real battle for women's rights.