How Far Could We Restrict Abortion?

As promised in my last post, I will now consider the following question: if I were put in total control of federal constitutional law, what is the most restrictive abortion statute I would consider upholding? There are basically three ways to answer this question: totally pro-life, totally pro-choice, or something in the middle. Or, to put it another way, you either need to say that a law prohibiting abortion from the moment of conception would be constitutional, that no law imposing anything more than good-faith time-place-and-manner-style regulations on medically-supervised abortion up to the minute, or perhaps second, before birth would be constitutional, or you need to find some convincing way to draw a line somewhere between the two. Obviously I don't adhere to the first position. I'm not at all sure, however, that I adhere to the second one, either. That requires me to draw some lines, and below the fold I will attempt to do so. First I'll sketch the outlines of what I think might be the most restrictive possible legitimate abortion law, and then I'll attempt to defend both why I think such a law might be constitutional and why I think violating any requirement I place upon the law would render it invalid.


Well then, here goes. I think that, in a state which provides robust sex education to its adolescent children and which promotes easy access to the morning-after pill and, perhaps, to early-term abortions, it could be constitutional to prohibit abortion either after the point of fetal sentience or after a reasonable period of time since the woman became aware of her pregnancy, whichever comes later, unless in the medical opinion of the woman's doctor the health risks from her pregnancy have become more severe since that moment. There's a lot in there, and I think it's all necessary, so now I'll unpack each element of it.

Pre-Sentience Abortion and Why Not Take the Total Pro-Choice Position

These two are tied together for a very simple reason. Put simply, I think that protecting the interests of sentient beings is perhaps the central state interest, that protecting the interests of a sentient fetus is perhaps a strong enough state interest to justify some restriction on abortion, and that no other relevant state interest could be. That I hold protecting the well-being of sentient organisms so important is why I don't necessarily think the Constitution protects abortion absolutely, conception through birth. Because it is the only reason I think that, when that interest is not present i.e. before the fetus is sentient I do think the Constitution protects abortion absolutely. As in, prior to fetal sentience there is simply no justification for any attempt to burden or harass women who seek abortion. In those circumstances, which as best I can tell from reviewing the medical science about the development of a fetus' nervous system cover something like 90%, perhaps more, of real-world abortions (see my discussion in this piece), I think the Constitution really does require abortion on demand, and without stigma. Essentially such early-term abortions should be treated like birth control or the morning-after pill.

But, you may be saying, what about the state's interest in potential life? The fetus may not be sentient, but it is on track to become a human being in the future. But there's a problem: once you go back one day before sentience, the potential-life argument is just too damn susceptible to a reductio ad absurdum. If the interest in a young fetus' potential life, removed from any interest in protecting the welfare of a currently sentient being, is strong enough to justify infringing a woman's rights of bodily autonomy etc., why wouldn't the same interest suffice to prohibit the morning-after pill? To prohibit birth control? That's the logic of Catholic dogma, which doesn't just think life starts at conception but holds that preventing the creation of a new life by using birth control is itself a sin. Why not go even further? If we can violate a woman's bodily integrity by making her bear a child to term, why can't we require her to have procreative sex, though she might not want to? It's not clear that the potential-life interest is any weaker there; after all, any time adult males and females are in a room together that room contains some life-potentials, which could easily start being actualized if only those adult males and females would just get it on. And it's not clear that the bodily-integrity interest is any stronger: pregnancy, after all, involves a non-trivial risk of death, which procreative sex does not. Or maybe we think that would be, well, rapey, and should get a special exemption. Why would that exemption prevent the government from conducting forcible artificial inseminations? The potential-life interest and the bodily-integrity interest are the same in that case as in the case of an already-conceived but pre-sentient fetus, best I can tell. But that would be obviously absurd; hell, I've been in "obviously absurd" land for a while now.

And there's only one difference between a woman who isn't pregnant, but who could be if she were slept with and/or artificially inseminated, and a woman who has gotten pregnant: the latter made the decision to have sex. (Well, unless she was raped or otherwise sexually exploited, accounting for the prevalence of rape exceptions to abortion laws.) But here's the thing: recreational sex is a constitutional right. That's the holding, basically, of Eisenstadt v. Baird (1972), which held that a state may not prohibit any adults from purchasing and using contraceptives. The government may not, in other words, force people to choose between having consensual sex and avoiding pregnancy. And I think this result is obviously right: recreational sex is, well, recreational, i.e. fun; it's one of the main ways that people pursue happiness without hurting anyone. But if the government isn't allowed to stop people from having sex-without-pregnancy, or to punish people for having sex-without-pregnancy, why should it be allowed to stop people who had sex, got pregnant, and don't want to be pregnant anymore unless it is to protect some sentient being from harm? To put it another way, people have a right to have recreational sex, and to use reasonable means of avoiding the pregnancy that might otherwise result from such sex insofar as they do not injure others. Pre-sentience abortion is just such a reasonable means of avoiding pregnancy. You don't avoid ever having been pregnant, but you can essentially go back in time and negate the pregnancy without harming anyone. And to treat the potential-life interest as categorically more important in post-sex cases rather than pre-sex cases is, I think, essentially to punish people for their recreational sex, something the government mayn't do. Accordingly, abortion of a pre-sentient fetus is absolutely protected, in my view.

Awareness of Pregnancy

The other limitation on when the government could legitimately regulate/restrict abortion relates to this discussion of the right to recreational sex. In general, you see, there is no obligation on one person to help protect another's life interest. There's no duty to risk your own life to save someone else's, for instance. There are some exceptions, though: a firefighter, say, would be in dereliction of duty if they refused to rush into a burning building to save someone's life, because they have accepted an obligation to do so. Similarly, the law recognizes a ton of parental responsibility. A parent who neglects to care for their young child is responsible for harm which befalls that child. So while in general one might think that a woman simply has no obligation to let a fetus feed on her body for nine months if she doesn't want to, that might not be true if parental obligations apply. One way people justify restrictive abortion laws is by saying that, since sex always entails some risk of pregnancy, the decision to have sex puts an individual on the hook for full parental obligations should pregnancy ensue from that decision.

The problem with this line of argument, however, is the same Eisenstadt principle. Recreational sex is a constitutional right in modern society. If that means anything, I think, it has to mean sex that doesn't commit you to parental obligation. That's certainly how people perceive things these days. And that means that, on the day a woman finds out she's pregnant, she doesn't yet have any special responsibilities toward her fetus. On that day, she has no more obligation to support it with her own body than she would any random stranger, which is to say, none whatsoever, even if the fetus is already sentient. Now, it just so happens that the only way for a pregnant woman to cease providing such support to the fetus is through an active medical procedure which, at least prior to viability, necessarily kills that fetus. But there are a ton of other cases where we allow people to passively refuse to save another's life, often when they could do so at much, much less personal cost than that of pregnancy. The decision to abort has the exact same effect as the decision not to be a good Samaritan: someone dies. If the woman truly has no obligations to support the fetus, that would seem to imply that she has the right to some means of not supporting it, and the only such means in the case of pregnancy is abortion.

But the case would be very different if parental obligations did apply, obviously. And while having sex can't, in my opinion, bring the weight of those obligations down upon a woman, it's not clear that they can't or don't attach until birth itself. It seems reasonable to me to think that these obligations begin to apply once a woman has had a reasonable opportunity since discovering that she's pregnant to consider whether or not she wants to bear the child. Now, I think any attempt to use those obligations to restrict abortion would need to be handled very delicately. In particular I think the state would need to get informed consent by the woman that her decision not to abort immediately upon awareness of pregnancy constituted accepting certain obligations not to abort going forward. Simply saying that a woman has only two weeks, say, after she knows she's pregnant to get an abortion would be too restrictive, given how terrible the state of knowledge about legal-medical issues is in this country and perhaps in all others. There would have to be some sort of discussion with the woman's doctor, about what responsibilities would attach if she decided to bear the child, what options she would have to avoid the duties of parenthood that wouldn't involve terminating the pregnancy, what the risks of pregnancy are in her case, etc. It would have to include making it very, very clear that up to the point of this discussion, the woman had the absolute right to decline to take responsibility for the child by getting an abortion, and probably, for reasons I'll discuss later, some explicit discussion of what exactly those responsibilities would entail during pregnancy and why a woman might want to think very carefully before accepting them. If we're talking about a fetus that is probably already sentient, I wouldn't necessarily have a problem with the doctor's discussing that fact with the woman, though obviously lots of Republican-sponsored laws require pretty gratuitously sensational emphasis on these sorts of points.

The question, then, is how the two timing requirements interact. The answer, as I mentioned above, is that the right to an abortion is completely protected until both deadlines have passed. There's no reason why a woman who becomes aware of her pregnancy early, before the point of sentience, can't reserve her decision whether or not to accept parental responsibility until that point, since again, it hurts no one. Conversely, the logic behind allowing a woman to decline those responsibilities through abortion begins by assuming the fetus is sentient, and therefore applies even in cases where, well, it is. But after each of those protections has spent its force, we are left with a sentient fetus, whose well-being is a legitimate concern of the state, and for whose welfare the woman has affirmatively taken responsibility for. If there is going to be a legitimate context in which to restrict abortion, that will be it.

The Health of the Mother

Those restrictions, however, cannot be a wholehearted ban. Rather, I think they must preserve the ability of the woman, in consultation with her doctor, to seek an abortion specifically to protect herself from any elevated health risks from pregnancy which become apparent after she accepted parental responsibility. This comes essentially from the parallel with post-natal parental responsibility. A mother does have certain significant obligations to provide care to her child, even at significant cost to herself, but she does not have a legal obligation to run into a burning building to save her child. She would have no legal obligation to donate organs to her child, even to save its life, and even if the organ in question is one, say a kidney, which can be safely donated. Parents are routinely asked to make enormous sacrifices of liberty, property, and pursuit of happiness for the sake of their child, but not of life, nor of limb.

Now, the case of pregnancy is perforce slightly different, since the risk to life and limb is inescapable. Accepting a responsibility to bear a child to term necessarily constitutes allowing that child to feed on your body from within for the remainder of nine months, as well as accepting some non-zero risk that the pregnancy will do lasting damage to your health or even kill you. So if it makes sense to speak of the "informed consent," so to speak, of pregnant women to their pregnancy as being legitimately held to bind them throughout the rest of that pregnancy, it can't just be that at any point thereafter the woman can get out from under that agreement simply by noting that she is both letting herself be consumed by a parasite living in her belly and undergoing a real risk of death. Now, I'm not sure that it does make sense so to bind pregnant women by their own assent, and in writing this post I'm not actually committing myself to the view that the law I'm sketching here would in fact be constitutional, just that it would be plausibly seen as constitutional.

In any event, how to balance between the general principle and the specific circumstance? The answer is, I think, that the "consent to pregnancy" only entails acceptance of those health risks which were reasonably foreseeable, and were in fact reasonably foreseen by the woman's medical consultants, at the time of consent. If, therefore, some unforeseen complication arises after the usual decision period has elapsed, which poses greater health risks than the woman had understood her agreement to encompass, she should no longer be bound by that agreement. Perhaps there could then follow another reasonable decision period in which she must either decline to bear the additional risk, and terminate the pregnancy, or accept these specific risks as she earlier accepted the general risks of pregnancy.

Now, viewing risk probabilistically, as is appropriate, it can become a little tricky to say what constitutes an unforeseen risk. Suppose I say, at a certain early point in a pregnancy, that there is an 0.01% chance of death in childbirth, roughly the U.S. average, and that the pregnant woman is informed of this risk. Does that mean that, if this risk rises to, say, 0.02% at any point during the rest of the pregnancy, the original acceptance of risk would cease to apply? I'm not entirely certain how I would favor handling this question, although I do have a meta-approach which I will discuss in a later section. One possible criterion to distinguish between cases, I might think, could be whether the specific elevated risk which develops later in the pregnancy is of a type for which the individual woman was already at an elevated risk when she made her original consent. So, if the woman is, say, a hemophiliac, which I believe is known to make pregnancy riskier than it would otherwise be, and she decides to go through with her pregnancy, despite knowing both of her condition and of its dangers, it could be reasonable to exclude specific complications of hemophilia which might become apparent later. If, however, the same woman develops some complicating feature which is unrelated to her hemophilia, she would receive more "lenient" treatment.

I will say that typing that last paragraph felt somewhat, well, wrong. Making these fine logical distinctions about when a pregnant woman should be seen as having already consented to a certain kind of risk, it just sounds more callous than I like things I write to sound. I think the logic is pretty sound, but I'm not at all sure the conclusion is, so I would like both to reiterate that I'm not committing myself to thinking such a law would in fact be constitutional and to mention that I will return to this question of how to handle newly-discovered medical risks in a later section. As it happens, the difficulty of navigating this issue might doom the law's validity, even accepting all my arguments for why it might be legitimate in theory. First, though, I will explore the one feature of my original formulation I have not yet discussed.

Guilt By Legislative Association

I stated that I thought this law would only have a chance at constitutionality if passed in a state which had a robust sex education policy, and which actively promoted easy access to the least troubling means of avoiding pregnancy, such as contraception, the morning-after pill, and perhaps early-term abortion itself. This is a slightly unconventional way to judge statutory validity. Most courts in most cases consider only the features of the challenged law itself; they do not go combing through a state's entire legal code searching for some incriminating factor. There are, however, exceptions. It is almost certainly true, for instance, that the way the various facets of segregation came together to form a suffocating social regime whose purpose and function was to perpetuate the inferiority of blacks helped to doom each individual segregation ordinance. The courts were almost certainly a lot less insistent on an explanation for why, say, the segregation specifically of water fountains or specifically of swimming pools, or even specifically of public schools, was a denial of the equal protection of the laws, because they knew that each individual act of segregation was part of an overall effort which undoubtedly was one.

And there's a danger of something similar here, which in the real world is more than just a danger. As I have argued in a recent post, it can often be quite clarifying to ask what a certain set of laws imply about the intentions of the state itself, considered as an abstract legal entity. There are, I contend, two possible motives, or at least two obvious motives, a state could have for wanting to limit abortion in the ways I have described, or any other. One is concern for the well-being of the fetus, the desire to prevent harm, the belief that abortion is akin to murder. Call it what you like; this entire post has been predicated on the notion that, at least once the fetus gains some semblance of sentience, this is a legitimate state interest. It might, in fact, be quite a compelling state interest, and so I've been exploring the various ways in which I think a state could go about trying to protect that interest while respecting the rights of the women involved.

There is, however, another possible motivation for limiting abortion, and it's much more pernicious. Call it the Catholic motive. The Catholic Church, you see, at least traditionally, would not deny the reductio ad absurdum point I made earlier, that early-term abortion is not much different from the morning-after pill, or from contraception. In fact it's not clear the Church minds late-term abortion much more than it minds early-term abortion, since it officially minds contraception just as much. Because, for the Church, it's not about the fetus. It's about the sex. The dirty, dirty sex. The dirty, dirty, sinful sex. Basically the idea is that sex is a form of intense sensual pleasure, so it's a bad thing that mustn't be allowed. Except we can't just outlaw sex or there wouldn't be any new people to replace all the old people who die, so we have to let people have sex but only to procreate. Otherwise it's sinful. Abortion and contraception alike make it clear that the only purpose of a certain sex act was, well, the sex, and the Church just can't have people going around having sex just for the sake of having sex.

In practice, of course, I'm overstating the opposition to sex, by the Catholic Church and other social conservatives. Most of them don't, in practice, have that much of a problem with men having sex. Just women, those disgusting whores. And it's very hard to doubt, I think, that on some level the historical motivation for all these anti-abortion laws and anti-contraception laws is to control female sexuality. Hell, last year during the Sandra Fluke brouhaha one Mr. R. Limbaugh gave the game away (see here) when he complained that health insurance providing birth control to college students meant he would be paying for a bunch of young sluts' sex lives. (Which, he added, in a delightful bit of you-can't-make-this-up, he would be fine with if he could watch.) That an awful lot of actual people throughout the years have simply not been okay with the idea of women having sex simply because they enjoy it, and that a lot of those people have tried to use laws against contraception or the morning-after pill or abortion as means of controlling female sexuality, is beyond dispute. Also, I should hope, beyond dispute is that this would be a wholly illegitimate motive for any part of the United States government.

The question is when we can tell that some part of the government is in fact motivated by these deeply illegitimate attitudes. And here, I think, we need to look at the rest of a state's behavior. The idea is basically what I outlined in this post a while back: anyone whose only relevant motive was to protect the poor innocent fetuses from harm would, particularly if they couldn't criminalize all abortion, be extremely eager to minimize the number of unwanted pregnancies. After all, abortions don't happen if unwanted pregnancies don't happen (except when severe health risks develop, etc.). If, therefore, a state is doing just about everything it could do to minimize the number of unwanted pregnancies (and/or the number of unwanted pregnancies that last through the point of fetal sentience), and also undertaking limited restrictions on abortion as sketched out in this post, then yeah, it looks like they're just looking out for the fetuses.

If, however, a state offers no advice to its young people about sex other than "don't have it until you're married;" if it creates nuisances and expense for those seeking contraception; if it restricts access to the morning-after pill; if it harasses women seeking early-term abortions to which they are legally entitled; if it makes them seek the consent of their parents, perhaps even of both parents, or, if they cannot get it, of some probably-male judge; if it creates obviously-spurious "health" and "safety" regulations on abortion clinics; if it forbids state-funded family planning counselors from discussing the option of abortion; if, in other words, the state is very plainly doing everything in its power to make it harder to have recreational sex secure from the risk of pregnancy, and in particular to prevent pregnant women from ending their pregnancies as easily and painlessly, for all involved, as possible, then we should not be so generous in our assessments of its motives. All of these actions, which are not at all exaggerations of what states actually do, are simply inconsistent with the hypothesis that the government undertaking them isn't trying to control female sexuality. And it is not allowed to try to control female sexuality!

When we find, therefore, an abortion statute in a state with a multitude of these suspect behaviors, we might well strike it down as unconstitutional even if the identical law would be valid in another state. The point is not just the burden placed upon the right to an abortion, the point is the centrality of the right to recreational sex. Regulating abortion while making a sincere effort to minimize the effect of those regulations on its citizens' sexual freedom is very different from regulating abortion while also making sure that those regulations will be maximally restrictive of that freedom. In the first case we might be able to say that the state has pursued its compelling interest while being careful to respect an important right from incidental damage. In the second, we should say instead that the state is pursuing an illegitimate interest and is attacking as such that important right, using as pretext the parallel justification for facially similar laws.

In passing I will take the opportunity to critique the Court's actual abortion jurisprudence along these lines. Parental notification statutes are a particularly disgusting example of abortion laws as social control. Young women who have had sex but who do not wish, as a consequence, to go through pregnancy and motherhood are often required to ask their parents' permission before getting an abortion. In some states, evidently, they must get both parents' permission, directly giving control over said young woman's body to an adult man. Sometimes the father has to sign off even if he's estranged, divorced, if he never married the young woman's mother, if he has a history of abuse toward his wife and/or daughter. Now, the Court has said that such notification laws must allow the woman to ask a judge for an exemption. Most judges in most states are men, so again we get young women being forced to ask older men leave to do as they will with their bodies. In many localities, apparently, many or perhaps all the male judges simply won't grant these exemptions, or will refuse to hear requests for them.

Now, the Court says that, given the judicial exemption procedure, these notification laws do not "unduly burden" the right to an abortion. I would say, rather, that they are deeply damning evidence that the state is mostly, or at least partly, concerned with the subjugation of women, and in particular with the sexual repression and objectification of women, as it may not legitimately be. At that point I really just stop caring altogether about the details of the statute, or how difficult it makes it to get an abortion, and I would be tempted to just strike down any abortion law featuring these notification requirements root and branch. If I were the jurisprudential dictator, I would be extremely demanding that a state demonstrate its good faith before endeavoring to regulate and restrict abortion, even if the regulations and restrictions are ones I might not think invalid under all circumstances. The actual Court, shall we say, does not see it my way. Oh well.

In Theory There Is No Difference Between Theory and Practice

I have outlined, in the first several sections, what features I think a law restricting abortion would need to have before I would even consider calling it constitutional. This, however, leaves unanswered the question of whether this theoretically-valid abortion law could ever actually exist in practice. There are at least two reasons, I will argue in closing, for thinking that it could not. One of these is, perhaps, somewhat incidental. The previous section was devoted to the proposition that a state seeking to regulate abortion in these ways must demonstrate, in the totality of its laws, that it supports the effort to avoid unwanted pregnancies while maintaining the sexual freedom of its citizenry. To put it bluntly, I see no evidence that there are any states currently in the Union which wish to limit abortion very much and which do not also want to limit the sexual freedom of their citizenry. Hell, federal law is rife with little burdens on abortion that would be highly suspicious under my approach. But even beyond that, the states passing restrictive abortion laws are pretty much the same ones doing abstinence-only. So if you adopted my jurisprudence right now in 2013, I highly doubt there would be very many states which would manage to pass abortion restrictions and get them upheld, just because the other evidence of their improper desires would be so overwhelming. For now, in other words, this discussion is pretty much academic.

The other difficulty is perhaps more enduring. I hinted at it above; it is the difficulties of determining when a woman would have a legitimate health-risk justification for seeking an abortion after the initial decision period. Here, in part, I actually rely on Justice Blackmun's actual opinion in Roe v. Wade itself, which is one of those opinions that gets kind of ignored in favor of its mutated progeny. I'm talking about the emphasis on the rights of doctors. Because, you see, I think that the state would have essentially no right to interrogate a doctor's determination of medical need for abortion, at any point in the process. Doctors are medical professionals bound by codes of conduct, and once we admit that heightened medical need can be a justification for a late-term abortion I think we are pretty much bound to accept their judgment as to what constitutes such need.

And this is where we come back around to the point that, numerically speaking, early-term abortion is the ballgame. Conservatives like to parade around scary statistics about how many women get abortions, but the truth is that almost all of those women get abortions which are pretty much entirely non-problematic under my approach. And based on my understanding of human nature I just do not think it's true that people get very many frivolous late-term abortions. I'm sure a good many of early-term abortions are "frivolous," in that they represent nothing more than a lack of desire to be a mother at that moment. And that's fine! But I don't think people abort seven- or eight-month-old pregnancies just because they've decided they don't feel like having a child now. I would guess that basically everyone who get a late-term abortion does so for reasons that would be pretty much legitimate under the approach I have outlined. People take this stuff seriously. Doctors take this stuff seriously.

And so the question is, if people take this stuff seriously and doctors take this stuff seriously, how often will it ever actually be the case that a law already circumscribed within the bounds I have suggested will find a desired abortion to prevent. Or to put it another way, if the point of an anti-abortion law can't be anything more than what my approach would allow, what point is left? Why bother, if all you can do is all I say you can do? And, as a legislator, this is where I would come out. I'm actually not sure how I would feel, even as a legislative matter, about requiring women who seek late-term abortions for reasons other than changed medical circumstance to be informed of alternative means of avoiding parenthood, such as adoption, before getting the abortion. (And I have pretty much no doubt that, for late-term, non-medically-motivated abortions only, such a requirement would be constitutional.)

In deciding whether this law, though I might think it pointless, could nonetheless be constitutional, I think the balance would have to be between the anticipated real effect of the law in advancing the goal, i.e. protecting sentient fetuses from harm, and the simple nuisance that would be placed on women seeking protected abortions from having to justify themselves to the state. I could well imagine that it wouldn't be possible to have a law that would have a favorable balance. In practice, therefore, my conclusion may well be that there is no abortion restriction as such which would deserve to withstand constitutional scrutiny, beyond the informational provisions for late-term abortions just mentioned. If, however, there were a law actually prohibiting certain abortions which I thought constitutional, it would look like what I have described. It would acknowledge that the state's interests simply don't exist until the fetus has a functional nervous system. It would not seek to impose any special parental responsibilities upon the woman simply because she had sex, but only if she chose to accept them once aware of her pregnancy. It would allow even those women who accepted those responsibilities to respond to any changed medical conditions. It would respect, perhaps to the point of obsolescence, the judgment of doctors concerning those changed medical conditions. And it would be situated amongst other state policies designed to minimize the need for abortion while protecting and preserving the right to sexual freedom. I am not sure that such a law would be constitutional, but I am quite sure that no law lacking any of these features would not be.