Abortion: Should the Courts Just Shut Up?
In 1973, the Supreme Court held, in Roe vs. Wade, that the constitutional guarantee of liberty protects a woman’s decision to have an abortion. In 1992, the court affirmed the essentials of that ruling and, in 2000, it again protected a woman’s right to choose in invalidating a state ban on the procedure critics call partial-birth abortion. The ban had been applied throughout pregnancy and made no exception for the life or health of the woman. In light of these court rulings, should a woman’s right to abortion found in Roe be considered settled?
Last month, Douglas W. Kmiec of Pepperdine Law School and Sylvia A. Law of New York University’s School of Law debated this question by e-mail for Opinion. The editors -- with each party’s final approval -- condensed and edited the exchange.
On 12/1/04 at 7:51 p.m.
Kmiec wrote:
No, Roe is not settled law. Ten years after the court’s controversial decision, Justice Sandra Day O’Connor wrote that Roe was a “completely unworkable method of accommodating the conflicting personal rights and compelling state interests that are involved in the abortion context.” Nearly 20 years after the original ruling, the Supreme Court revisited its decision and found it an overly “rigid construct.” In that 1992 ruling, (Planned Parenthood vs. Casey), the court reminded that “the Constitution does not forbid a state ... from expressing a preference for normal childbirth.” Hence, the court invites meaningful, responsible limits on Roe, a position that largely mirrors public opinion.
The legal question is whether activist judges will respect the democratic choices of Congress and the states to restrict abortion and affirm rights of conscience. Roe anticipated why it could not be the last word, namely, there was -- and is -- an unavoidable and continuing moral concern among the people of what becomes of a nation that allows constitutional language to trump the scientific reality of personhood.
**
On 12/8/04 at 12:45 p.m.
Law wrote:
Absolutely, Roe is settled law. If it isn’t, then neither are the Supreme Court’s rulings on which Roe is founded -- that parents have the right to make choices about the education of their children, and that freely consenting adults have the right to procreate and the right to use contraception. In these cases and others, the court recognized constitutional traditions protecting individual liberty to make fundamental personal choices and a right to privacy that protects personal decisions from governmental interference. Roe was a direct outgrowth of this constitutional commitment to individual liberty and privacy.
**
On 12/8/04 at 2:53 p.m.
Kmiec wrote:
Roe is clearly distinguishable from the earlier cases. The right to procreate and direct the upbringing of children are implicit in the concept of human nature, and, most important, to advance it. While artificial contraception is held by some to be religiously objectionable, the legal right was premised upon the marital union of husband and wife, which the court said preexisted government. Abortion neither affirms, directs nor sustains human life.
**
On 12/9/04 at 9:28 a.m.
Law wrote:
Only someone who has never been pregnant and carried a pregnancy to term could think that the awesome decision whether or not to bring a child into the world is less essential to human liberty than parental choice about how children should be educated. Bodily integrity is deeply embedded in our Common Law tradition, and the Constitution prohibits states from denying single, as well as married, people access to contraception. Moreover, contraception and abortion affirm the “human life” of adults who make complex moral and practical choices.
**
On 12/9/04 at 10:40 a.m.
Kmiec wrote:
We agree that both men and women have an interest in the preservation of bodily integrity and that that interest is part of the Common Law. But those who advocate the full protection of human life, with the support of virtually every geneticist and ultrasound at their side, see two bodies -- not one -- following conception. There is no Common Law tradition authorizing one person to sacrifice the bodily integrity of another. To the extent that there are ideological claims that see the scientific fact of human life as inconclusive or the unborn as less than human, the constitutional text, absent Roe, assigns that debate to the states.
**
On 12/12/04 at 9:50 a.m.
Law wrote:
Science does not tell us when a fetus becomes a person, only religion does. For Roman Catholics, personhood begins at conception, and abortion is a sin. For Jews, human life begins at birth. Nonetheless, abortion is an important moral issue that should be resolved in relation to the woman’s health. For mainstream Protestants, human life begins at viability, or when the fetus, through the mother, is capable of a relationship with God. The moral question is whether having a child is consistent with the pregnant woman’s best understanding of God’s plan for her life. In a pluralistic society, one religious view cannot override the fundamental liberty of those who have different values. Abortion is an important moral issue that should, therefore, be resolved in relation to the woman’s health.
**
On 12/13/04 at 10:43 a.m.
Kmiec wrote:
Separating personhood from the scientific facts of life is always perilous. Witness: slavery. If religious traditions differ as widely as you suggest, that is yet another reason why abortion cannot be “settled” by judicial decree. Rather, it must be settled by civil dialogue in state legislatures, where the voices of both faith and reason can be fully heard. These too are the best places to evaluate health issues. By employing an overly broad definition of “health,” the court’s rulings permit abortion up to the moment of birth. Very few Americans support this. In passing the federal prohibition of mid- to late-term partial-birth abortions, Congress expressly found the procedure to be “never medically necessary.” But thus far judges have stubbornly refused to observe science, medicine or legislative finding.
**
On 12/14/04 at 7:51 p.m.
Law wrote:
Control of reproduction is essential to women’s equal citizenship and ability to contribute to every human enterprise. For centuries, our law denied women’s equality. Women were mothers, not citizens, lawyers, athletes, scientists or soldiers. As recently as 1961, the Supreme Court held that women could be systematically exempt from jury service because they belonged in the home. Since the 1970s, the notion that women should not be denied the right to perform and contribute has become the constitutional and cultural norm. Women’s equality demands profound social transformation. Gender equality is disquieting to many. Resistance is channeled into opposition to reproductive choice.
**
On 12/14/04 at 1:36 p.m.
Kmiec wrote:
It is irrational to exclude women from public position or vocation on the basis of gender. It is equally mistaken to deny the significance of parenthood and the unique contributions of each gender to it. Abortion is neither a necessary condition nor a guarantor of equal treatment. Indeed, some cogently argue that it conspires to reduce human sexuality from a sign of love and total gift of self to mere desire and instinct. Civil rights laws ensure against discrimination on the basis of pregnancy, and the Constitution largely prohibits gender-based decision-making. Equality of opportunity would be a Janus-faced concept if it depended upon the denial of the life and human dignity of others.
**
On 12/15/04 at 12:09 p.m.
Law wrote:
While some people believe that sexual relations must always be open to the possibility of procreation, many believe that contraception facilitates human flourishing, and that abortion is often a moral choice. Unplanned pregnancies confront many women with wrenching practical and ethical decisions. Teenagers may appreciate that they lack the financial and emotional resources to be a good mother. A woman struggling to provide for her existing children may realize that an additional child could threaten a fragile family. Women with serious health problems face the threat of death or disability from pregnancy. Denying access to abortion is discrimination on the basis of pregnancy and gender, and is also a denial of fundamental human liberty.
**
On 12/15/04 at 2:25 p.m.
Kmiec wrote:
The ethical dilemmas you pose are important but better raised before conception. Every community is called upon to decide when individual discretion ends and obligation to others begins. The constitutional text does not resolve this question for abortion, and there is no assurance that the people will democratically choose to respect life as either you or I see it. Had the judges not intervened, this dialogue would be taking place in state assemblies. There, in mutual respect, the advocates for unborn life could admit that there is no genuine love, even between mother and child, unless it is freely given, while the defenders of abortion might at least concede that it is untenable to incline the law against the life of others -- not a solution to our divide, perhaps, but a good start.
**
On 1/12/05 at 7:28 p.m.
Law wrote:
Law legitimately enforces social obligations. But it never mandates the physical intrusion and denial of liberty that results when a woman is forced to bear a child. Parents are not legally compelled to donate a kidney to a child, even if the need is desperate, though the parent has an extra and the physical risks of donation are less than many women confront in forced pregnancies. Moral choice before conception is preferable and should be encouraged through honest sex education and contraception. Sadly, many who deny abortion also resist informed pre-conception choice. The anti-choice movement often denies what you acknowledge, that genuine love must be freely given. Pro-choice people affirm the value and complexity of human life.