The right to have an abortion

Next week's topic in our local discussion group, Beyond Labels, was triggered by discussion of the Texas abortion clinic case currently before the Supreme Court. The case, known to its friends as "Whole Woman’s Health v. Hellerstedt" revolves on the following legal point:

Issue: (1) Whether, when applying the “undue burden” standard of Planned Parenthood v. Casey, a court errs by refusing to consider whether and to what extent laws that restrict abortion for the stated purpose of promoting health actually serve the government’s interest in promoting health; and (2) whether the Fifth Circuit erred in concluding that this standard permits Texas to enforce, in nearly all circumstances, laws that would cause a significant reduction in the availability of abortion services while failing to advance the State’s interest in promoting health - or any other valid interest.

The full record of proceedings can be found at Scotusblog, here.

To comprehend the dimensions of the case I went back to Roe v. Wade. (Wikipedia, text of decision) and the underlying judicial argument on the right to privacy, and the history of thinking about abortion.

Roe v Wade's justification on the basis of the right to privacy seems to be pretty widely misunderstood by conservatives and liberals alike. Conservatives say things like: "Neither the Bill of Rights nor the rest of the Amendments nor the rest of the Constitution says anything about a right to privacy. This is more liberal legislating a new right from the bench." Liberals say: "Well, of course we have a right to privacy" but they generally can't make the argument that explains why such a right would exist under Constitutional law.

The liberal "argument,"  which amounts to "Well, it's obviously the right thing to do, so it should be a right, even if it's not," may be (self-) satisfying, but it's vacuous.

The conservative argument, which is an actual argument, and so doesn't get scare quotes, is wrong. The Constitution does not enumerate every right of the people. But it does, specifically say, in several places, that the Constitution does not remove existing rights. So if the people had a right to privacy before the Constitution, they still have it.

The argument that the right to privacy is new is based on a misunderstanding of what "privacy" means, under the law. A simple definition is: that which is not public, is private. What I do in the middle of Main Street is a public act. What I do at the lobby of the local hospital is public. What I do in my bedroom is private (though some would have it otherwise.) And what I do in my doctor's office is private -- between me and my doctor.

Another definition of privacy is "the right to be left alone." Absent compelling state interests, about which there can be discussion, we have the right to be left alone to do what we choose to do unless what we choose to do runs against a compelling public interest. So if we are engaged in creating nuclear weapons in the privacy of our bedrooms and the government finds out, then the government can stop us.

The argument against Roe v. Wade is also based on a misunderstanding of the history of the law on abortion. Under English Common law, abortion prior to "quickening" -- the first movement of the developing fetus -- was not an indictable offense. Quickening occurs around the 16th to 18th week of pregnancy and would certainly be consistent with first trimester abortion. 

The first state law in the United States that specifically addressed abortion dates to 1821. So a social liberal taking a strict constructionist point of view could argue that prior to 1821 a woman had a right to have an abortion and a doctor had a right to perform one -- at least through the time of quickening. This was a private act. There was no law against it. 

On that argument, the subsequent state laws that abridged that right -- other than in the interest of an existing state interest -- such as the health of women were unconstitutional. The argument that the state had an interest in protecting the life of the unborn child is an argument, but it's a new argument that overturns an existing right. So, no.

The argument supporting Roe v Wade then goes like this:

1. The 9th Amendment says: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people"

2. The 14th Amendment says: "...No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law..."

3. So the rights that people had under the prevailing conventions of law -- English Common Law -- are not denied or disparaged under the Constitution, and a state can't enforce laws that abridge the immunities or privileges of citizens.

4. So if the people had a right, privilege, or immunity and a state passed a law that took it away, that law was unconstitutional.

QED

In 1890, Samuel D. Warren and  Louis D. Brandeis, the latter eventually to become a justice of the Supreme Court, wrote an article that was published in the Harvard Law Review some 27 pages long, including footnotes traces the evolution of rights in common law. 

The law, in earliest time granted people the right to life -- which originally just meant freedom from battery. People had the right to live their lives unimpaired. To kill someone or to beat them violated that right.

Long before the Constitution was written the understanding of these rights began to change.  English civil law recognized that threats of battery -- which include we call assault were also a rights violation.  We have the right not only to be let alone and not beaten, but also the right not to be threatened.

The law recognized that not only was an individual's body not subject to ill-use by others, but also each person's reputation was also a valuable asset and that destroying that asset -- by libel, by slander, by defamation violated a right.

The right to be protected from assault is not explicitly stated in the Constitution -- because it didn't need to be. It was a right that already existed. Same with the right to privacy and the right to have an abortion.

So that's what I've learned