Wednesday, November 18, 2009

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.


Tim Crim said...

Good post, David. While I don't have anything to say about the legal analysis, I wanted to engage you in a philosophical vein by sharing a thought experiment.

First, some background: I have always struggled with the ethics of legalized abortion, and as a lapsed Catholic (and materialist) I have struggled with this struggle - fearing, essentially, that I am oppressed by a metaphysical hangover.

This was a thought experiment proposed by Patrick Lee, as recorded by Ryan T. Anderson:

"Would it be wrong, he asked, to kill someone after a surgery that would irreversibly erase all his memories and leave him unconscious for several months? Yes it would, he argued, even though he would be in the same psychological position as a human embryo or fetus. For he would still retain, as a human being, the basic natural capacity for personal acts—even if the immediate ability to perform them would be delayed. Similarly, the human embryo or fetus has that same personal nature; she just needs time to develop herself to the point where she can exercise it."

It is a provocative thought experiment. One weakness is revealed by the word "develop." But before I get into that I want to know what you think.

David Schraub said...

Sounds rather Dollhouse like, no?

I think we kind of view humanity as a sort of "past the post" system -- once you get it, you don't lose it, even if you're in the sort of position where you don't have the capabilities we normally use as a marker of "human". Why is that? Respect for the person they were, maybe? A perceived lack of urgency in needing to draw a line of when humanity ends (it might be important for certain end-of-life decisions, but unlike fetal life most end-of-life decisions can be discussed with the entity at issue when they're in a state to render decisions on the matter)? I'm not sure.

chingona said...

In the thought experiment, is the person hooked up to another person's body for all his sustenance? When he wakes up, will that other person be legally responsible for him for the next 18 years? In the process of waking, could he possibly kill the other person?

I have never seen one of these thought experiments that accounted for the fact that a fetus grows inside a kind of human being known as a woman.

PG said...

The trouble with analysis based on the idea that the fetus is a person is that it's utterly disconnected from the laws we actually had that banned abortion. Those laws never treated abortion as homicide of the fetus; rather, they categorized abortion among crimes against health, safety, welfare and morality. The American Medical Association pushed for the criminalization of abortion in 1900 because it so often resulted in the injury or death of the pregnant woman. (Note that the AMA did *not* lobby for the criminalization of partial-birth abortion, because at this point in medical progress it's a reasonably safe procedure.) Abortion in state criminal codes was listed with prostitution, adultery and sodomy, not with manslaughter or murder.

So people have not always seen the fetus as a person. Rather, abortion historically was deemed problematic because of the risks it posed to the woman and because of the role it played in fostering sexual immorality. Abortion is now physically safer than delivery, and the state's role in preventing what it deems "sexual immorality" is seriously in question. Thus we now have the elaborate comparisons of the fetus to recognized persons.

As chingona notes, the "develop herself" part of Lee's thought experiment is quite typical in its utterly ignoring the fact that the fetus does NOT develop itself. Rather, its development is made possible only by its being inside and attached to an individual woman's body.

If it were possible for a fetus to "develop itself," abortion would be replaced by state- or church-run institutions in which fetuses, removed from women who didn't wish to carry them, were put into whatever chemical solution would allow them to "develop themselves." Unfortunately, that particular Brave New World does not exist, and the recurring erasure of women in such thought experiments tells us a great deal about the people who come up with them. (Contrast with Judith Jarvis Thomson's famous violinist thought experiment, which recognizes the humanity of both the violinist and the person unwillingly made responsible for the violinist's welfare.)

joe said...

1) I don't think it's that much of a leap in terms of "engendering significant opposition," at least among the broader public, to make the fetal personhood argument. Most people's opinion on Roe hinges on abortion, not on constitutional analysis. The debate has basically been framed by both sides as "Roe legalizes abortion; without Roe abortion would be illegal." (Things are different in academia and the judiciary, but note that the political process can have a large influence on judicial philosophy. See Heller.)

As to the 14th Amendment, there's no reason pro-lifers in particular need to embrace originalism. Especially if the issue is framed as "social justice/increasing respect for life" instead of "restoring traditional values." (Full disclosure: I am pro-choice, but the sooner originalism shuffles off the better for us all.)

2) I'm sure most pro-lifers are willing to pays their money and takes their chances when it comes to Roe prohibiting forced abortion. Assuming, arguendo, there is no other constitutional bar (be it fetal personhood or some other claim other than right to privacy), I don't think "no forced abortion" statutes or even amendments to state constitutions would be that unpopular, since both pro-choicers and pro-lifers have a reason to support them. The world won't freeze in place if Roe is overturned, you know. On this point your reasoning is similar to the claims that universal health care means "death panels" down the line.

And let's face it, this is mostly a debate gambit you're using; I am not particularly concerned with forced abortion happening in the US in the foreseeable future. Certainly it is not a reason I could list off the top of my head for supporting Roe, and I bet the same is true for most other pro-choice people.

Finally, even if, in some jurisdictions and under some limited circumstances, forcible abortion is not barred by the political process, it's not unreasonable from a pro-life perspective to figure the payoff (reduced access to abortion overall at the cost of some forcible abortions) is an improvement on the status quo.

David Schraub said...

I think you're missing the point, Joe. First, I think the legalistic framing of the pro-life position as "left to the states" is important to conservative legal elites from a legitimacy perspective (and it doesn't actually clash with policy motivations insofar as they believe that without the constitutional bar, they can win through the political process). Certainly, that is the public legal framing. So I don't think it is invalid to talk about what the doctrine would look like on the terms of the people promoting it.

Second, you're overlooking the point from my excerpt, which is that coerced abortion cases have actually happened in the US. This isn't theoretical. We don't even need to talk about laws -- Arnold appears to have been a 1983 claim -- we can easily imagine individual instances of state-coerced abortion or sterilization which need some legal principle to dictate their wrongfulness.

Third, I'm not arguing that pro-lifers should support Casey. I'm merely pointing out that the alternative doctrine they're publicly supporting is one that carries the above risks. It is up to them to decide which is more or less important.

PG said...

What David said about coerced abortion cases having actually happened. I don't know why people who want to argue for Roe's unimportance think that history is so irrelevant.

From a "social justice/increasing respect for life" perspective, I would think forced contraception and sterilization would be almost as bad as abortion, yet social conservatives have been fans of mandatory sterilization or implanted contraceptives for women on welfare or who are defendants in the criminal justice system. It generally wasn't social conservatives who were arguing against the forced sterilization of those deemed retarded (which the Supreme Court ratified as perfectly constitutional in Buck v. Bell) nor of other social undesirables (ultimately rejected by the Court in Skinner v. Oklahoma). The one exception to this would be people who took Catholic doctrine (which opposes contraception and sterilization) very seriously and consistently, but such folks are rare.

joe said...

I don't think I am overlooking your point. One of my points is that the pro-life movement doesn't stop just because Roe goes away. If forcible abortion or sterilization did come back (which I can imagine, but would probably be rare) they would be pretty easy targets for a political movement that took down Roe. Mass media being what it is today they could mobilize pretty much instantly on that issue (think the Terry Schiavo thing by a factor of then) and not even face real opposition The only legal principle needed is that they use the ballot box to defeat state-coerced abortion the same way they plan to beat voluntary abortion.* If they really wanted I'm sure they could get bans on this now, except there's really no point as long as SCOTUS recognizes a right to choose, and to the extent it's politically useful to conflate Roe with China's abortion policies having those redundant laws now would be a crosspurposes. Similarly, I as a pro-choice person can't really get worried about this particular feature of a Roe reversal--I see it as a paper tiger.

Now, maybe we can imagine some hypothetical future where pro-lifers can't stop abortion-by-mandate, say, if the US government switches to the Chinese model. But in that case if the state decides some pregnancies must be aborted it's not going to let Roe stand in the way because at that point we'd have either a different constitution or simply be completely ignoring the one we've got. If this is the kind of imaginable scenario you're relying on the same sort of slippery slope fallacies that give us the "death panel" rumor.

On "significant opposition": To the extent you're talking about conservative elite opinion, you're right its partly a states-rights-that-genuinely-isn't-code-for-racism deal. My point was just that those elite opinions are pretty mutable in the long term. I don't take you for a believer in the "Great Man" theory of history, so as you know: Social forces, political power bases, these things trump individuals. Populist conservatism (tea parties, dittoheads, etc.) has advanced steadily, and I don't see much sign of it stopping.

*And all that's discounting other constitutional theories they can drum up to stop forced abortion that wouldn't depend on Roe.

joe said...

(My last post was a response to David.)

PG, yes I know coerced abortion happened, but that doesn't mean a repeat is likely in the foreseeable future. Not given contemporary attitudes and politics, and not with a hypothetical pro-life movement with the strength to bring down Roe. As for how important Roe is, it's important, but not so important that abortion providers haven't been all but pushed out of some states, but for better or worse it's been simplified in the media and the popular imagination.

(On "social justice": I'm not interested in defending modern conservatism. I was just pointing out that abortion opponents don't need to rely on originalism.)

PG said...

"PG, yes I know coerced abortion happened, but that doesn't mean a repeat is likely in the foreseeable future. Not given contemporary attitudes and politics, and not with a hypothetical pro-life movement with the strength to bring down Roe."

(1) What is different in the "foreseeable future" from 1989 (Arnold) or 1994 (DC mayor Barry and many other elected officials seek to tie welfare benefits to sterilization)?

(2) The pro-life movement doesn't have to be all that strong to bring down Roe (and in actuality we're governed by Casey's viability standard, not Roe's trimester scheme). It just needs to elect a president who can replace one Casey-supporting member of the Supreme Court with a justice who does not believe abortion is a Constitutionally-protected right. Bush got one, by replacing O'Connor with Alito. Why does this seem so fantastically difficult?

joe said...

Well a lot of social attitudes can evolve over the course of 15-20 years, but one of my friends just married another woman (albeit in another state, but give SSM another decade or two) so what do I know?

And yes, the pro-life movement does need to be pretty strong to keep pushing its litmus test. You're framing it as just one SCOTUS replacement away, but you are ignoring everything that led up this point. Roe was what? 7-2? So now we're at 5-4 on Caseu, by your standards that makes them 2/3 of the way there. There was a time (and it wouldn't be too long ago by the view you and David are using when citing to Arnold) when Republican presidential candidates were quietly pro-choice. Contrast to the present day where the entire party has basically been purged.

So yeah, I'd say they're pretty strong.

As to the rest, I can only repeat what I said earlier. If David is outlining a likely result of a Roe/Casey reversal (as opposed to a hypothetical "death panels will follow" result), why is this not a major argument advanced by the pro-choice movement? No one in politics will understate the negative results of an opponent's plan, but I have never heard it outside a blog. And possibly a ConLaw class now lost in the blur of law school.

PG said...

I have no idea what the "7-2" "5-4" "2/3" math is about. The math is pretty simple; subtract one incapacitated/ resigned pro-Casey justice, add an anti-Casey justice = Casey overruled.

There was a time (and it wouldn't be too long ago by the view you and David are using when citing to Arnold) when Republican presidential candidates were quietly pro-choice.

What time is this, precisely? I cited 1989 and 1994. Reagan opposed Roe. Bush Sr. made abortion the only issue on which he would not compromise (as he ultimately did compromise on taxes). Nixon supported abortion only in cases of rape, incest and interracial fetuses. When Ford was running for the presidency in 1976, he stated opposition to Roe.

Who were these Ye Olde Pro-Choice Republican presidential nominees? Seems like the pro-lifers have been successful with this litmus test. It even extends to VP candidates, which is how we ended up with Palin after the GOP elders rejected McCain's preferred pro-choice Republicans and Lieberman.

The pro-lifers have been influential in the GOP since Roe was handed down, and they have been pressing for pro-life Supreme Court nominees. Ever noticed how many Catholics the Republican presidents have nominated to the Court? The Court is now 6-3 Catholic, with 2 of those candidates presumed pro-choice (Sotomayor and Kennedy, though Sotomayor has never been pressed to a vote on the issue and Kennedy has been willing to limit certain abortion rights) and the other 4 overtly anti-choice.

joe said...

Ok, if I have been unclear then let me show my work. Roe was a 7-2 decision, yes?

If constitutional protection for abortion rights is now within one vote of defeat, that means the pro-lifers have already gotten two of the extra three votes they've needed since Roe came down. So they've already made a lot more headway then replacing "one Casey-supporting member" of the Court.

As for Republicans, yeah they've always had to pussyfoot around because of the social conservatives. But professed opposition to Roe aside, Ford was pro-choice. And he nominated Stevens, which doesn't say much for an. Bush I is the reason we hear mantras like "no more Souters." And there won't be more Souters, my whole point (actually just a subpoint in this larger conversation, but one you seem to take issue with even though much of what you are saying supports what I've said) is that social conservatives shown a lot of clout, and it's grown substanially within a major political party.

For bonus points, can you guess which failed Republican presidential candidate got an abortion for his teenage daughter? Hint, he was widely described as a right-wing nutjob, which just goes to show how time makes everything relative in politics.

chingona said...


PG said...


That Ford had to go against his own convictions on the matter of abortion in order to obtain the GOP nomination for the presidency just proves how wrong you are that pro-lifers have only recently -- rather than even further back than the cases David cited from 1981 and 1989 concerning forced sterilization and abortion of "undesirable" parents -- held significant political power. On the contrary, by your own account they could get Ford to lie about his own position on the abortion issue. So they've been powerful for quite some time.

It is silly to try to measure political power over time by the number of anti-choice Supreme Court appointments obtained. Justices often have to be carried out feet-first, and are a freakishly long lived lot. The question is entirely of whether pro-lifers obtain candidates whom, at the time of appointment, the pro-lifers like.

The "no more Souters" cry is not because Souter was nominated as a known pro-choicer, but precisely because he was not a sufficiently known quantity to avoid his later coming out as a liberal. (If you remember or go back to read the coverage of his nomination, you'll find that he was opposed by the National Abortion Rights Action League.)

Harriet Miers was rejected by the base on those grounds of uncertainty; she simply hadn't done enough time in the ideological trenches, no matter how faithful a lackey she was to Bush personally. So the pro-life movement has become cannier and another Souter is extremely improbable. They just have to wait patiently for the next Republican president to coincide with the next liberal's departure. Or, if Obama has a reverse-Souter in Souter's replacement, perhaps they won't have to wait at all.

To review, the claim that pro-lifers were not politically influential when there were actual cases of forced sterilization and abortion has been proven untrue. At those times, they simply didn't make a great cause of the reproductive rights of women ... how surprising! not at all what one would expect of a group defined by its opposition to the idea that women should control their reproductive destinies.

joe said...

Look, if you want to believe that social conservatives have not been a growing power within the GOP over the past few decades that's your right. I do not think it would be a majority view of historians, journalists, political scientists, or politicians, however.

I note you also have not responded to the question of why David's assertion has not had legs within the pro-choice movement.

And yes, abortion opponents do not believe in total reproductive freedom. That's just a truism.

My point has been this: You can't assume forced abortion is the ideological endpoint of what we would consider the wider pro-life movement. And it's probably a mistake to assume it as a given actual endpoint. So I'm at a loss as to the point of David's argument. It's at least a little condescending for him to claim the pro-lifers are really confounding their goals because he doesn't really share those goals, because that's kind of like claiming a given group "doesn't know it's own mind." It's a very anti-subordination argument, the kind we hear from Republicans who don't understand how minorities could possibly support Democrats. Also my first post outlined how the current pro-life strategy is a logical pursuit of those goals; it's not outlandish to wager they can overcome blowback in the form of Chinese-style forced abortion. So it's not an argument to the pro-lifers.

Maybe it's just a refutation of any implication Roe means forced abortions. But that implication is moronic on its face, so no rebuttal is needed.

At this point all he's left with is the truism that pro-lifers believe in restrictions to reproductive freedom. And as you yourself pointed out, pro-choicers know this is necessarily true.

joe said...

oops, that should read "anti-antisubordination argument."

David Schraub said...

Joe -- you're just not grasping the argument. It isn't that pro-lifers believe, as a policy matter, that coerced abortion or sterilization is okay. It's that the upshot of the legal principle they're pushing for would as easily sanction forced abortion as it would forced pregnancy, which is problematic insofar as forced abortion cases have occurred contemporaneous with a powerful pro-life movement. The fact that the pro-life movement is powerful enough to get Roe overturned (a single shot victory) does not mean it will be in a position to block every individual actor's coerced abortion. If what we're worried about is the ability of victims to bring a 1983 claim, as in Arnold, it's a big issue that overturning Roe would severely undercut that argument. It's not about "ideological endpoints", it's about how the legal terrain would change practically speaking in the aftermath of Roe's demise -- a wholly separate question from the heartfelt desires of the pro-life movement's membership.

joe said...

Well, OK, then as a practical matter I see this argument as complaining about spoiled food on the Titanic. And I think the pro-choice community basically agrees with me or this would be a much more prominent bullet point. Yes, you point to a change in the legal terrain, but if the Court says "Oh wait, actually there is no right to privacy emanating from those penumbras so abortion bans are okay" then there are bigger ramifications beyond the obvious. Because if there's no right to privacy then there goes Lawrence v. Texas and it's now (functionally) illegal to be gay in red states again.

PG said...

I note you also have not responded to the question of why David's assertion has not had legs within the pro-choice movement.

The pro-choice movement has articulated this concern -- that's why it shows up in Casey at all, because it was in the briefs submitted by pro-choice organizations (Planned Parenthood and amici).

It's not raised as much outside the legal world because the argument is (as this discussion has shown) difficult for people who are not thinking in constitutional terms to grasp. Such people misunderstand the argument as "Oh, you think pro-life people *favor* forced abortion and forced sterilization?"

"No, I said that if the state has the power to regulate women's reproduction, that power extends to mandating abortion as well as prohibiting it. And pro-lifers want the state to have the power to regulate women's reproduction."

"So you're accusing pro-lifers of wanting to force abortion!"


My point has been this: You can't assume forced abortion is the ideological endpoint of what we would consider the wider pro-life movement.

Who said it was? The point that has been made repeatedly is that forced abortion, sterilization and contraception would be constitutionally permissible in the absence of Roe. The courts have relied upon Roe as a precedent to prevent state power from being exercised to control women's reproduction. Prior to Roe, in Buck v. Bell, the courts approved forced sterilization. Which part of this history are you disputing?

joe said...

I don't think political advocacy groups really shy away from ju-jitsu because it's too confusing. Like the entirety of the NRA's press (that isn't "armed citizenry saving us from fascism" crap) is that less guns means more violent crime.

And I know the history. But history isn't destiny. And Buck v. Bell? Come on. I don't think Korematsu has been explicitly overturned but I doubt we'll see a repeat of the internment camps.

PG said...


I'm not sure what you mean by ju-jitsu. The argument put forth in Casey, and repeated by David here, is an argument about the Constitution. Most Americans don't even know what's in the 14th Amendment. You think it's worthwhile for the pro-choicers to get into the details of federalism and the states' police powers? You're a lot more optimistic about your fellow citizens' ability to grasp an argument that takes more than 30 seconds, on probably the most emotional, contentious issue in U.S. politics, than I am. Such an argument is very easily misrepresented/misunderstood -- as you did yourself with "You can't assume forced abortion is the ideological endpoint of what we would consider the wider pro-life movement." -- and thus easily blows up in their faces. The "don't send women back to coat hangers" stuff has been reasonably effectively for the pro-choice movement thus far.

And Buck v. Bell? Come on. I don't think Korematsu has been explicitly overturned but I doubt we'll see a repeat of the internment camps.

Korematsu is fairly well dead with the limitations the Court subsequently has put on the state's power to use racial determinations in detainment policies. See, e.g., Johnson v. California (forbidding racial segregation in prisons even for persons who already have received due process). In contrast, when you take away Roe, what is the strong precedent for saying the state does not have the power to control reproduction by those deemed undesirable? The last forced sterilization in the U.S. was in 1981, in Oregon. I just don't understand what's so drastically different today that you can be utterly certain no one would try to sterilize a person deemed mentally incapacitated. Indeed, our increasingly harsh views on welfare would seem to promote minimizing the number of children born to people whom we believe unwilling or incapable of supporting those offspring themselves -- a less eugenic motivation than that in Buck v. Bell, but with the same result of forcing sterilization on the "feeble minded."

David Schraub said...

Alabama also recently considered castrating sex offenders -- pulling back not because of policy objections, but because they believed it was unconstitutional.