Abortion Appeal Renews Longstanding Debate on Constitution’s Implied Rights

The Bush Administration’s direct attack Wednesday on the constitutional right to abortion forces the Supreme Court to reconsider one of the most difficult areas of legal theory: Does the Constitution give Americans rights that it does not spell out?

It is this issue that squarely separates the Supreme Court’s conservative and liberal factions. It is also the issue that helped to sink the Supreme Court nomination of Judge Robert H. Bork, who maintained in Senate hearings that millions of Americans watched on television, that there is no constitutional “right to privacy” because the Constitution does not contain those words.

The issue looms large in the Missouri case currently before the court that could determine whether the 1973 Roe vs. Wade ruling that established an implied right to abortion will be overturned or scaled back.

Conservatives’ View

Conservative jurists such as Bork and Chief Justice William H. Rehnquist long have said that the Constitution requires courts to protect explicitly provided, written rights such as “freedom of speech,” but nothing more. Other matters should be left to the decisions of elected government bodies, they have maintained.

By contrast, liberals such as 83-year-old Justice William J. Brennan Jr. maintain that the Constitution obliges the court to go beyond its narrow words to protect “overarching principles” of human freedom and dignity.

Over the 33 years of Brennan’s tenure, the high court has declared that Americans have a number of fundamental rights not spelled out in the Constitution, including a right to marry, a freedom to associate with whom one pleases, a right to privacy, a right to “bear a child . . . without governmental intrusion,” and most controversially, the right to abortion.

On Wednesday, Charles Fried, a conservative Harvard law professor representing the Bush Administration’s position in the Missouri case, urged the court to overrule the abortion right--while upholding all the rest.

“We are not asking the court to unravel the fabric of unenumerated and privacy rights which this court has woven in cases” dating back 50 years, Fried said. “Rather, we are asking the court to pull this one thread.”

Call Approach Smart

Legal experts said Thursday that Fried’s approach was a smart one, even if it proved troublesome for some of the justices.

“Tactically, it was a necessary move for him,” said University of Chicago Law School Dean Geoffrey R. Stone. “If there is one lesson of the Bork hearings, it is that Americans believe they have a right to privacy, even if it isn’t spelled out in the Constitution.” Nevertheless, Fried’s argument quickly raised the eyebrows of Justices Anthony M. Kennedy and Sandra Day O’Connor, considered key swing votes on the abortion issue.

Both pressed Fried during his oral argument on how it could be that the Constitution includes a “marital right to privacy” and the “right to bear or beget a child . . . without governmental intrusion,” but nothing about whether or not a woman has a right to terminate her pregnancy.

“Do you say there is no fundamental right to decide whether to have a child or not?” O’Connor asked.

Kennedy, who joined the court last year and has yet to vote in an abortion case, also seemed troubled by how the justices can draw a line between the “right to procreation” in a birth control case and the right to choose abortion in Roe vs. Wade.

Hard to Draw Line

“It’s a hard line to draw,” said Stone. “I don’t see a principled way to distinguish the right in those two situations.”

Harvard law professor Frank Michelman agreed. “Once you say there is a fundamental right to procreational choice, it would seem apparent that a woman also has a fundamental right to choose whether or not to go ahead with her pregnancy,” he said.

But both constitutional law experts pointed out that the state’s interest--the other side of the equation in any constitutional case--is much different in the birth control and abortion cases.

States can argue, as Fried did Wednesday, that “abortion is different” because the life of an unborn child is at stake.

“Depending on how the court weighs the state’s interest, you can say there is a huge difference between (the birth control case) and Roe,” Stone said.

Justices Differ

In past abortion cases, the court’s conservatives have enunciated two views. Rehnquist and Byron R. White said that there is no right to an abortion, so Roe vs. Wade should be overruled. O’Connor has suggested that a woman does have a right to choose abortion in some circumstances but has said that the state also has a “compelling interest” in protecting fetal life. She has not spelled out at what point a state’s interest in fetal life would permit it to override the woman’s right to choose an abortion, but her writings suggest that she has a different view of the matter than Rehnquist or White.

On Friday, the justices voted behind closed doors on the Missouri case and prepared to draft opinions. If Rehnquist got four other votes to uphold the state law, he decided who writes the court opinion and what it says.

But the conservative majority could split into factions based on their past approaches. Several of them, such as White, Rehnquist and Antonin Scalia, may favor a broad ruling overturning Roe vs. Wade entirely, legal analysts say. Others, including O’Connor and perhaps Kennedy, may favor a narrower opinion that upholds the Missouri law--which bans the use of public funds or facilities for abortions--but says nothing about the underlying right to abortion in Roe.

“We may end with more than one opinion,” said Michelman. Even if the Missouri law is reinstated, it may not produce a clear court precedent.