Once again, Republican lawmakers are taking aim at the reproductive rights of American women. Assaults on Planned Parenthood don’t really make any sense – its primary purpose is to provide its patients with contraception and sexual health screening, and it’s the only provider in a lot of urban and rural communities. Planned Parenthood’s mission isn’t all that controversial. For all the prudishness expressed by many on the religious right, no one actually wants an outbreak of HIV or untreatable gonorrhea in rural and urban America (even Mike Pence). The only reason the Republican party is attacking contraception and women’s health organizations is because some Planned Parenthood clinics and many other sexual health clinics perform abortions. The “moral majority” just can’t seem to get at Roe v. Wade itself – yet. Social conservatives have allied themselves with judicial conservatives, who have a constitutional objection to Roe, for 40 years, and they aren’t likely to stop attacking reproductive rights unless the split in the legal community is resolved – which is highly unlikely.
It is the legal controversy, not the moral one, that has created Roe’s destructive power in our politics, because social conservatives know they can attack Roe by appointing the right people to the Court. Many perfectly rational judges and lawyers, whether they personally support abortion rights or not, are skeptical about the constitutional theory Roe was based on. In finding a right of privacy inherent in the 14th Amendment, the Court revived one of the most controversial theories of constitutional law in American history and based women’s reproductive rights on that unstable foundation. Basically, we’re fighting to protect the right of poor women to have access to pap smears because it did not occur to the men writing the seminal case on women’s rights that the case was about the equal protection of women’s rights at all.
About that right to privacy …
So here’s the thing: a woman’s right to have an abortion is based on a right to privacy that the Constitution does not explicitly grant. That right, as applied in Roe, is read into the 5th and 14th Amendments, which say that no citizen shall be deprived of life, liberty, or property without Due Process of law. The Court says that the right of a woman to procure an abortion before her fetus becomes viable – when it could live outside the womb – is part of the “liberty” interest the State can’t take away from her. This act of reading into the “liberty” interest is called “Substantive Due Process” (I have never heard a good explanation why). On one hand, that seems completely logical. What could be more important to liberty than the right to control one’s health and bodily function? On the other hand, many lawyers and judges are very wary about reading rights into the “liberty” interest of the Due Process clause, because doing so is associated with one of the ugliest chapters of Supreme Court history.
I mean, why shouldn’t a kid work 70 hours a week?
In the late 19th and early 20th centuries, the Supreme Court went to quite a bit of trouble to protect the property rights of the wealthy at the expense of the huddled masses of 12 year olds apparently yearning to breathe some free factory air. The Court concluded that the “liberty” interest of the Due Process clause included a right to contract. In a series of decisions knocking down labor laws, including a federal law regulating child labor, the Court concluded that the individual’s right to contract was more important than the government’s interest in ensuring corporations were not abusing and killing its citizens. This era of pro-property rights Court decisions is called the Lochner era, after one of its most famous cases. This line of cases was finally overruled in 1935, and it is among the most clear and destructive examples of “activist judging.” So when Roe was decided in 1972, reading rights into the “liberty” interest in the Due Process clause, Substantive Due Process had long been a constitutional hot potato. It is favored by some Justices for its flexibility in adapting an 18th and 19th century document to the modern world and disfavored by others for its past and potential future abuses. The problem with basing Roe on substantive Due Process is that whether you agree with it or not, there are popular and valid legal arguments against it. The debate about reproductive rights isn’t going away because there are a lot of lawyers and judges who, whatever they think of abortion, are very wary of this line of reasoning.
What’s wrong with a little Equal Protection for the ladies?
The weird thing about Roe v. Wade is that it could have been decided on a much more solid foundation: the Equal Protection clause of the 14th Amendment. Had the decision been founded on that basis, some judges might have questioned whether abortion rights are an Equal Protection issue, but no one questions whether the right to Equal Protection of the laws exists. Moreover, it’s easy to prove that reproduction places a burden on half the population that does not exist for the other half. With many women acting as heads of household, it seems a pretty obvious argument that restricting their right to control reproduction effectively restricts their right to pursue their life goals and provide for their families in competition with men, who cannot get pregnant. Few, if any, judges would contest today that the clause applies to the rights of women. Indeed, the argument against the Equal Rights Amendment was and is that women are protected by the Equal Protection Clause. It seems unlikely Roe would have remained so profoundly controversial if it had been decided on that basis.
So why are we still arguing over reproductive rights? Because the men evaluating the importance of a woman’s right to terminate a pregnancy spent a great deal of time evaluating the medical history and implications of termination, but very little time evaluating whether an abortion could impact a woman’s ability to determine her future, as any man would expect to do. Ruth Bader Ginsburg has said that she wishes the first reproductive rights case had been that of a young female Air Force Officer who, when she became pregnant in Vietnam, was given the choice of terminating the pregnancy or leaving the service. Ginsburg thinks this illustrates the fact that the issue is a woman’s choice, not the mechanics of abortion. I agree. At the time Roe was decided, it was only two years after the Equal Protection clause had been applied to women for the very first time. The world might be quite different if abortion rights had been decided a few years later. However, all speculation about how Roe could have been decided is an intellectual exercise; it is unlikely substantive Due Process is going anywhere. As with all important civil rights cases, Roe v. Wade has other precedents built on top of it, most importantly (in my opinion) the entire line of gay rights cases involving sexual privacy and marriage. So ladies, when the next Supreme Court seat opens up, grab your gay friends and protest for all you’re worth, because all of our rights depend on it.