A Woman's Right to Choose

We're on the abortion unit in Constitutional Law III, and tonight I'm reading Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), the case famous for upholding Roe v. Wade. One argument they discuss in the case is the issue about a woman's right not to have an abortion -- that is, the freedom to carry a pregnancy to term. Anti-abortion organizations often accuse pro-choicers of being "pro-abortion" to the point of being indifferent to policies such as China's forcible abortions. This is obviously absurd, as such acts are entirely inconsistent with the prevailing doctrine asserting a woman's right to choose.

However, the plurality solidifies this argument in a very concrete fashion:

If indeed the woman's interest in deciding whether to bear and beget a child had not been recognized as in Roe, the State might as readily restrict a woman's right to choose to carry a pregnancy to term as to terminate it, to further asserted state interests in population control, or eugenics, for example. Yet Roe has been sensibly relied upon to counter any such suggestions. E.g., Arnold v. Board of Education of Escambia County, Ala., 880 F.2d 305, 311 (CA11 1989) (relying upon Roe and concluding that government officials violate the Constitution by coercing a minor to have an abortion); Avery v. County of Burke, 660 F.2d 111, 115 (CA4 1981) (county agency inducing teenage girl to undergo unwanted sterilization on the basis of misrepresentation that she had sickle cell trait) . . . . (859)

Legally speaking, pro-life actors rarely rely on fetal personhood as their mode of attack, presumably because this would undoubtedly cause a complete inversion in the constitutional status of abortion, from constitutionally protected to constitutionally prohibited -- a goal that, if made public, would engender significant opposition (it also, as the Roe opinion makes clear, is entirely inconsistent with the original understanding of the 14th Amendment). So instead, they argue simply that this is an area where the constitution is silent, and hence is a province of the legislature.

But if that's the case, and this arena really does lie outside judicial purview, then the Casey plurality is correct that there is no reason why a legislature could not just as soon force women into terminating pregnancies as they could force them into carrying them to term. And the citation to Arnold and Avery shows that this is hardly a hypothetical concern.

Roe stands a fundamental bulwark defending a woman's right to control her own body. Alienating that principle to prohibit a woman for choosing to end a pregnancy means gutting its ability to protect a woman from being forced to end one. There is no severing the two.