Why Abortion Has To Be Federalized

My constitutional law small-group class has spent the past couple of days discussing abortion and Roe v. Wade, and there are basically two battles here. There's the battle on the merits, namely, if we have to decide how to balance the various quite compelling interests at stake here, how should we go about doing so? But there's also the institutional-role battle: is this something the federal courts should be handling? Since the constitutional text is ambiguous on many of the key points of the on-the-merits debate, shouldn't states be left to form their own democratic judgments? There's a problem with this, however. This is not really a case where the existence of important federal-constitutional rights is in question. Rather, the ambiguity concerns whether there are countervailing interests at stake sufficient to justify what look on inspection like violations of those rights. The pro-life case, in other words, is not about denying the importance of a woman's control over her own body (well, unless the pro-life movement lets its id speak a little too openly), it's about asserting the overriding importance of protecting the life of the unborn child.

If you wish to deny the existence of unenumerated rights altogether this claim ceases to be true, but the Supreme Court has never once done so. Once you admit that these rights, which are properly viewed as Ninth Amendment rights but which in practice go by all sorts of doctrinal disguises, exist, I doubt there are very many in American society today who would accept the consequences of denying a right to bodily integrity generally beyond the abortion context. So it's clear that, at least under the underlying principles of modern individual-rights jurisprudence, anti-abortion laws must interact, somehow, with constitutional rights, and the question is the nature of that interaction, and how far a state may legitimately go toward restricting these rights in this context. Obviously the Supreme Court must set a nationally uniform minimum protection level. Conceivably it could also set a nationally uniform maximum, too, depending on how strong it finds the countervailing interests in certain contexts. In the gap between maximal and minimal protection, or simply between minimal and complete protection if no maximum is set, states are given full license to conduct their federalist experiments in democracy.

But once those national rights are implicated, it simply becomes infeasible to allow an individual state to adopt, say, the proposed Mississippi personhood amendment. Someone needs to say whether the valid state interests that could be argued to exist in preventing the abortion of a given pregnancy, or in a given pregnancy scenario, are sufficient to negate the protective force of those rights, and plainly that someone cannot be the states. This is not an area where the Constitution can be seen as silent, as leaving things simply in the hands of state legislatures; it is, rather, an area where important values under the federal Constitution are in conflict, and if the Fourteenth Amendment says anything* it is that the solution to such a conflict must be a federal one. The alternative is for the Court to allow states to restrict abortion, and with it the rights of pregnant woman and their doctors, in ways which the Court believes, in its own considered legal opinion, are not sufficiently justified by any legitimate state interests. Or, alternately, for the Court to allow states to permit abortion, in violation of the fetus' right to live, without sufficient justification, if its conclusion on the merits was that certain kinds of abortion had to be criminalized, perhaps on Equal Protection grounds. Either way the Court would be allowing states to violate important constitutional requirements, simply because the answer how best to balance the various interests at play in the abortion debate is not immediately obvious from the constitutional text. I can't imagine any reason to favor that approach, other than substantive disagreement with the Court's on-the-merits judgment and a resultant desire to minimize that judgment's reach.

In my next post I will address what I think the correct minimum protection would be, i.e. what I think is the most restrictive abortion statute that could possibly survive constitutional challenge under what I would consider proper jurisprudence.


*Well okay, technically if the Fourteenth Amendment says anything it's that the government mayn't discriminate against black people as such. But in terms of the broader political theory of the Constitution, its basic effect is to nationalize individual rights.

Don't Fear the Privileges or Immunities Clause

In 1868, Congress passed and the American people, well, sort of ratified the Fourteenth Amendment to the United States Constitution. Its first section transformed the fabric of our government more or less from top to bottom. Its first clause overturned the Dred Scott decision, granting citizenship to all persons "born or naturalized" in the US. The third and fourth clauses guaranteed due process of law and equal protection of the laws to all person within each state's jurisdiction. But the second clause was pretty clearly supposed to be at least as important as these other clauses:

"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States..."

This, rather plainly, was a vehicle for enforcing protections of nationally-defined individual rights against the state governments. Except the Court didn't see things that way, holding in the 1873 Slaughterhouse Cases that only those rights regarding federal matters (access to ports and waterways, running for federal office, protection on the high seas, etc.) were "privileges or immunities of citizens of the United States," while ordinary civil rights were not. They seemed to justify this holding on the grounds that it was just implausible that Congress meant to shift protection of all civil rights from the states to the federal government. That's clearly absurd.

But I've heard another, somewhat less absurd argument for why one ought to be skeptical of using the Privileges or Immunities Clause as the vehicle for "incorporation" of general civil rights against state governments, instead of the Due Process Clause: the former protects only citizens, while the latter protects all persons. This sounds plausible: it should trouble us if the right to freedom of speech, or free exercise of religion, or any of the privacy rights the Court has found over the past century, were only to be enjoyed by citizens, and not by lawfully resident aliens. But this objection also seems to me to be one that does not actually stand up, because of the Equal Protection Clause.

On Individual Rights

In this post I am going to describe my own personal opinion of the structure of individual rights. This is, to be clear, not a positivist opinion. I'm not describing the structure of individual rights in, say, the American Constitution as written, though I might argue later that it's reasonable to read my notion of individual rights into the Constitution. Rather I'm making what you might call a "natural law" argument, except that I wouldn't phrase it in terms of natural law as that has various religious or top-down implications. But I am definitely talking about how I think one ought to approach the question of individual rights. Here's my basic thesis: the only individual right is the right to the pursuit of happiness, and any specific individual right may be derived from that right.