Abortion

One of the most divisive issues in modern America is whether a woman may choose to terminate her pregnancy. This debate revolves around an antecedent question of both scientific and philosophical proportions: when does human life begin? For if a fetus may at some point during the pregnancy be considered a human life, then the mother’s rights are no longer the only ones at stake and abortion can plausibly be characterized as murder.

Like many other controversies, the abortion dilemma does not receive specific mention in the Constitution. Such silence means that the federal government lacks power to resolve the debate in favor of either side (unless a constitutional amendment grants such power). Conversely, this constitutional silence means that the States enjoy the ability to tackle the issue in any way they see fit, thereby fulfilling the competitive, experimental function that the Founders intended. Indeed, States had a long history of legislating on abortion – before, during, and after the adoption of the Fourteenth Amendment – so the Fourteenth Amendment did not in any way alter the situation. Such decentralization not only accommodated the preferences of diverse communities, but it also de-fused the bitter, no-holds-barred national acrimony that has descended upon us.

With its 1973 decision in Roe v. Wade, the Supreme Court acted even more unprofessionally than usual by taking sides in the abortion debate and holding that the citizens of the several States could no longer decide for themselves how best to resolve it. What makes this decision especially ludicrous is that the Court invented this “right” out of thin air, whereas with most of its other decisions, the Court had “incorporated” (however erroneously) specific provisions from the Bill of Rights into the Fourteenth Amendment and against the States.*

In Roe, the Court was dabbling in the alchemy known as “substantive due process.” Pursuant to that amorphous doctrine, the Fourteenth Amendment’s key language – “nor shall any State deprive any person of life, liberty, or property, without due process of law” – allows the Court to intervene even when there has been due process of law . . . if the result of that process upsets the Court’s sensibilities. In other words, the Court has converted a procedural guarantee into a guarantee of substantive (i.e., Court-approved) results. This frees the Court from obeying constitutional text, as well as from respecting the absence of constitutional text.

In the 1992 ruling of Planned Parenthood Of Southeastern Pennsylvania v. Casey the Court had an opportunity to re-visit the mess it had made and return abortion to state jurisdiction, where it always belonged. Many of the Court members had reflected on the brazenness of Roe and appeared poised to reverse it. However, Justice Sandra Day O’Connor flinched when authoring the Court’s majority opinion. Justice O’Connor – whose capacity for indecision has made her a modern hero – felt that even though Roe was flawed, its core holding should remain undisturbed because of the nineteen intervening years of popular reliance on it. To soothe her conscience, she slightly broadened States’ ability to regulate abortion, yet without returning their ability to outlaw it completely. That is to say, she split the baby. By deeming these paltry nineteen years weightier than two hundred years of constitutional law and practice, Justice O’Connor brazenly exhibited her lack of judicial temperament.  In a complete about-face, she rejected her own reasoning in 2003 when holding that any reliance on precedent concerning state anti-sodomy laws could be ignored without undermining the Court's legitimacy or consistency.  (To be discussed in the next installment.)        

Our ongoing national “conversation” over abortion has vulgarized political discourse and spawned legions of gadflies whose sole purpose is to swirl around this festering issue. As the Founding Fathers warned, the nationalization of political life destroys the tolerance and flexibility that a federal, decentralized system of government fosters. But then again, perhaps the nationalization of abortion was the result, rather than the cause, of our increasing inability to act like adults. 

 ____________________________________________________________________________ *Also infuriating about the Court’s quest to protect a non-existent abortion “right” is the fact that the Court simultaneously has refused to protect a right that does appear in the clear language of the Fourteenth Amendment, namely property -- the Court blithely allows States and their subdivisions to trample property rights on the slenderest of pretexts. While it’s true that the Fourteenth Amendment was never intended to make the Court a “perpetual censor” on state laws concerning either abortion or property, the Court’s vigilance to protect the former at the expense of the latter reveals the Court for the nakedly partisan body it has become.