‘How Do We Save Roe?’ Is The Wrong Question

U.S. Supreme Court Justice Ruth Bader Ginsburg discusses the Roe vs. Wade case on it's 40th anniversary at The University of Chicago Law School in Chicago, Saturday, May 11, 2013. The U.S. Supreme Court decided Roe v... U.S. Supreme Court Justice Ruth Bader Ginsburg discusses the Roe vs. Wade case on it's 40th anniversary at The University of Chicago Law School in Chicago, Saturday, May 11, 2013. The U.S. Supreme Court decided Roe v. Wade in 1973. It established a nationwide right to abortion. Ginsburg, the second woman to serve as Supreme Court justice, was appointed to the high court by former President Bill Clinton in 1993. (AP Photo/Paul Beaty) MORE LESS
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Each January, as the anniversary of Roe v. Wade approaches, pro-choice supporters wonder whether the decision will survive, and how to do it. Unfortunately, these are the wrong questions.

First, strictly speaking, Roe has already been set aside, at least in part. The relevant Supreme Court case on the question of abortion rights is now Planned Parenthood v. Casey, the 1992 decision that jettisoned the trimester framework created by Roe while leaving intact what the three justice plurality opinion in Casey called Roe’s central or essential holding: that women have a constitutional right to privacy protecting their right to an abortion before the fetus becomes viable.

But more importantly, neither Casey nor Roe itself prevented government regulation of abortion: abortion on demand at any time during pregnancy has never been the law of the land. In the years since Roe, the Supreme Court has frequently upheld legislative restrictions that make abortions more difficult or even, as a practical matter, impossible for some women to attain. The Hyde amendment prohibiting the use of Medicaid funds to pay for abortions unless the pregnant woman’s life is endangered, waiting periods, informed consent requirements, parental consent requirements for minors, the federal ban on so-called “partial birth abortions” (not a medical term, but an effective, though misleading, political one).

The reality is that access to abortion has been dramatically limited even though Roe has only been partially overruled (TRAP laws targeting family planning health centers for closure have been especially effective). In some ways, and for some women, it is effectively the case that Roe has already been rendered moot. As the American Prospect has observed, “existing law [already] allows states to effectively extinguish access to abortion.” Legislators understand this and have acted accordingly. In four states, just a single abortion clinic remains.

None of this is to say that Roe and Casey are meaningless. But for decades now (essentially, ever since Roe was first decided), the real fight has been in the legislative arena. The Supreme Court did not have the last word on the matter (though the justices seem to have incorrectly believed otherwise). Opponents of abortion understand very well that they can do quite a bit without completely overruling Roe—in fact, in some ways, it is to their advantage to keep the Supreme Court decisions in place in order to use them as a rallying cry for their base.

Besides, the two decisions rest on constitutionally shaky ground. The Court has identified a constitutional right to privacy as the basis for the right to abortion before fetal viability. But the right to privacy is, rightly, an extremely controversial concept. The word “privacy” does not appear in the Constitution itself. That is not necessarily a bar to its existence—implied constitutional rights and powers have been recognized in other areas, and the 9th Amendment itself offers support for the idea of implied rights. However, the Court did not base its decisions in Roe and Casey on the 9th Amendment. Instead, it relied on the doctrine of substantive due process—the idea that the due process clause in the 14th Amendment (or 5th, as applied to the federal government) protects certain fundamental rights, including the right to privacy, even though such rights are not expressly named in the Constitution. Substantive due process is most notoriously associated with early 20th century Court decisions that struck down maximum hour and minimum wage laws.

The reason the Court abandoned substantive due process in the context of economic regulation is that the doctrine seems to provide ready cover for judges to enshrine their personal policy choices into constitutional law. The same criticism—that substantive due process is an illegitimate doctrine—can be equally leveled when it is applied in the context of reproductive rights (as Ruth Bader Ginsburg herself recognized in a 1984 lecture she gave on Roe nine years before she joined the Supreme Court).

Instead of focusing on defending Roe, which requires defending its indefensible reliance on substantive due process, advocates for reproductive rights ought to adopt a strategy that instead places their opponents on the defensive. This can be done, or at least begun, by asking a simple question: Why do opponents of abortion support restrictions or even a broad ban on abortion?

It is clear that legislative and other efforts to restrict abortion are rooted in religious objections, stemming from the idea that personhood begins at conception. This idea is not a matter of scientific consensus, but a specific religious view—one that is hardly shared by all faiths. The logic of these anti-abortion voices suggests a much clearer constitutional basis for supporting abortion rights than the right to privacy: the 1st Amendment’s Establishment Clause, which provides that “Congress shall make no law respecting an establishment of religion” (a prohibition now applied to state and local government as well).

Although the scope and reach of the Establishment Clause is a matter of debate, it’s clear that the Clause prohibits government from favoring one religion or one religious view over another. Since advocates of restrictions on abortion aim to do just that—to impose their own specific religious view on all women—advocates of abortion rights can invoke the Establishment Clause as a powerful tool that can place opponents of abortion on the defensive in both the legislative and the judicial arenas.

Even though the fight over access to abortion mostly takes place in the legislative arena, it’s still important to ground the defense of abortion rights in constitutional terms. Judges are not the only ones charged with upholding and interpreting the Constitution. Legislators can, and should, play a role in shaping constitutional meaning.

There is one final reason why it’s a mistake to focus on Roe: doing so implies that the current fight is merely about preventing a return to the past, when women forced to receive illegal abortions often ended up dead or admitted to hospitals as a result. This is not to say that this history is anything but chilling and horrific. No one should argue that the pre-Roe climate for women seeking abortions should be forgotten or minimized in any way. But focusing on a defense of the 1973 Roe decision runs the risk of distracting attention from the different, but still grave and pressing, issues that many women who need abortions today face.

Making the case for abortion rights isn’t just about staving off a pre-Roe world. It’s about highlighting today’s problems, and making sure women today have a voice. There are projects committed to doing this—for instance the 1 in 3 Campaign, a project of Advocates for Youth (disclosure: my wife works for Advocates for Youth, though neither she nor Advocates for Youth had anything to do with this piece). This work is essential in keeping the case for abortion rights compelling and relevant, rather than associating it with a 42-year-old Supreme Court decision that has failed to effectively protect access to abortions for the women who need them.

Chris Edelson is an assistant professor of government in American University’s School of Public Affairs. He is the author of Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror, published in 2013 by the University of Wisconsin Press.

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  1. This is an interesting argument, but ultimately weak. To summarize the article: the definition of person-hood is religious, and therefore protected by the first amendment.

    I would argue, however, that society as a whole sets a set of rights and norms that should inform this conversation. We decide, for example, to extend the full privileges and rights only to adults in this country. Even then, we restrict some rights until age 21. This restrictions are not religious in nature. We have made these decisions as a society, based on cultural norms, not religion, or really, science. When we then decide what rights and privileges to extend to non-viable children, we do so in a context were such decisions have historically been made by consensus and law.

    I would agree with the premise that whether or not a soul is possessed by a fetus is a religious argument, and has no place in government discussions. However, whether or not a fetus has the right to not be killed, is a much more difficult ethical question that law must actually be allowed to answer.

    I personally believe that we cannot ethically ignore the rights of the fetus. However, in all cases, I believe we need to value the rights of the mother more. Practically, the state can not, and should not, tell any human what he or she can do to his/her own body. The right over self is a fundamental part of the social contract, and all restrictions should be reviewed with the highest level of scrutiny. Restricting abortion based purely on the rights of the fetus puts the state in a position of valuing the potential life over the rights of an existing life. It puts the state in a position of dictating what happens inside a woman’s body.

    In short, I think that there are several ways to argue for the rights of the unborn without reference to religion. A far better approach for those of us who wish to defend the rights of women is to do this by defending the rights of women. To try to undermine the argument on the person-hood side on first ammendment grounds will only serve to harden opposition. You will never convince someone who believes that all rights of the born should be extended to the unborn by telling them their opinion is religious, so doesn’t count. You might convince them that even if that is true, that the state has no right to force a woman to eat well, sleep well, and follow all state orders during pregnancy. You might convince them that the state cannot require a woman’s body to be used in the way they want. Hey, it worked for me.

  2. Avatar for kuni kuni says:

    I don’t know what monkey god those who want to force Sharia Law on America worship, but every Christian knows that God permits and condones abortions.

    Numbers 5 documents a Bronze Age abortion, where a woman is given a potion to induce a miscarriage if her husband thinks that the fetus is not his.

    Furthermore, my tax dollars were used to fund wars of choice, against my religious beliefs. These heathen’s tax dollars should now fund abortions. Their heathen tax dollars are no more sacred than my Christian tax dollars.

  3. Avatar for fgs fgs says:

    The right question is how do we defeat Republicans. Everywhere and always. Republicans are the party of judging people. The judgement of the day is to accuse someone of disability fraud for parking in the handicapped space while looking somewhat attractive and not using a wheelchair, but the judgment of women for their sexual behavior has never gone away.

  4. Also, Exodus 21:22 states that causing the death of an unborn fetus, even through an act of violence rather than by choice, is not equivalent to murder.

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