The Law of Pregnancy

Posted: Tue, Sep 3, 2024

Background

Section 1 of the 14th Amendment (ratified 1868):

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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; nor deny to any person within its jurisdiction the equal protection of the laws.

Historic achievements in the 50s and 60s:

Brown v. Board of Education (1954): invalidating “separate-but-equal” and overruling Plessy v. Ferguson (1896).
Title VII of the Civil Rights Act of 1964: outlawing employment discrimination based on race, color, religion, sex, and national origin.
Voting Rights Act of 1965: enacting legal safeguards against racial discrimination in voting.
Loving v. Virginia (1967): invalidating antimiscegenation laws.

Meanwhile:

There was far slower progress on gender issues.
Gender issues were not taken seriously by movement men.
Sexism was common within civil rights groups themselves.

Possible textual homes of gender equality rights:

The Equal Rights Amendment: passed the House in 1971; passed the Senate in 1972; failed to be ratified by 1982.
The Equal Protection Clause: envisioned by Pauli Murray and pursued by then-Professor Ruth Bader Ginsburg.
- Reed v. Reed (1971): holding that the Equal Protection Clause covers discrimination on the basis of sex.
The Due Process Clause: procedural vs. substantive due process.

By the 60s, substantive due process had long had a bad rep. Of particular note was Dred Scott v. Sandford (1856), which struck down the Missouri Compromise:

[A]n act of Congress which deprives a citizen of the United States of his liberty [to bring the enslaved person north of the 36°30’ parallel] or property [the enslaved person], merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law.

The Substantive Due Process Argument for Abortion Rights

The Fundamental Rights Analysis

Not all liberties are created equal.

A statute that implicates an ordinary, mere liberty interest is reviewed for rational basis: it is constitutional so long as it is rationally related to a legitimate state interest; the burden is on the challenger to show that it is not.
A statute that implicates a fundamental right is subject to strict scrutiny: it is not constitutional unless it is narrowly tailored to a compelling state interest; the burden is on the state to show that it is.

Which are the fundamental rights?

Enumerated rights are expressly protected by the Constitution.
Unenumerated rights are implied by the Constitution.

Is the right to decide to terminate a pregnancy an implied/unenumerated fundamental right? How do you tell?

Roe v. Wade (1971): yes; the conceptual analysis.
Dobbs v. Jackson Women’s Health Organization (2022): no; the historical(+conceptual?) analysis (the Glucksberg test).

Roe v. Wade (1971)

Held: A statute criminalizing abortions unless they were “procured or attempted by medical advice for the purpose of saving the life of the mother” unconstitutionally burdens the right of privacy.

What is the Court’s argument for this holding? (p. 242)
Just what does the Court think abortion is an issue of?

The trimester framework (pp. 243–44):

	Is the state’s interest in protecting the material health compelling?	Is the state’s interest in protecting the potentiality of human life compelling?	What is the state allowed to do?
First trimester
Second trimester
Third trimester (post viability)

Some lingering questions:

Note the physician in the background: during the first trimester, “the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated” (emphasis mine). Is the right at issue [in the Court’s language] a woman’s right to decide whether to terminate a pregnancy or really a physician’s right to exercise his medical judgment? How might have the racial politics of “butchery in Mexico” played into this?
The Court takes viability to be a particularly normatively significant point in fetal development. “This is so,” the Court explains, “because the fetus then presumably has the capability of meaningful life outside the mother’s womb.” Is that right?
The Court seems to give no serious defense of the idea that a potential person’s interests matter—wouldn’t a potential person have only potential interests? (One trouble case for denying that potential people have interests, though, is the interests of future generations in relation to climate change.)
Why does the Court go on to announce a rather rigid trimester framework? Is the trimester framework even necessary for the Court’s fundamental rights analysis?

Planned Parenthood v. Casey (1992)

In Casey, the Court was explicitly asked to overrule Roe.

Declining the invitation, Justices O’Connor, Kennedy, and Souter’s joint opinion purported to reaffirm “the essential holding of Roe v. Wade.”
- What was the essential holding of Roe?
Justices Blackmun and Stevens joined this part of the joint opinion, making it a majority.

Among the parts of Roe judged to be non-essential are:

Roe’s understanding of the right to abortion: “What is at stake is the woman’s right to make the ultimate decision, not a right to be insulated from all others in doing so. Regulations which do no more than create a structural mechanism by which the State, or the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman’s exercise of the right to choose” (p. 251, my emphasis).
Roe’s trimester framework: “We reject the trimester framework, which we do not consider to be part of the essential holding of Roe. . . . The trimester framework suffers from these basic flaws: in its formulation, it misconceives the nature of the pregnant woman’s interest; and in practice, it undervalues the State’s interest in potential life, as recognized in Roe” (p. 251).
- In other words, states can restrict abortion access to protect potential human life prior to viability, and states can restrict abortion access to protect maternal health prior to the start of the first trimester.
Roe’s determination that strict scrutiny is appropriate for reviewing abortion restrictions: “In our view, the undue burden standard is the appropriate means of reconciling the State’s interest with the woman’s constitutionally protected liberty. . . . A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus” (p. 251, my emphasis).
- The dissents—Justice Scalia, joined by Chief Justice Rehnquist and Justice Thomas—would review abortion restrictions only for rational basis.

What, then, are the essential parts?

The state’s “profound” interest in the protection of potential human life throughout the pregnancy, which Roe “undervalues.”
The state’s interest in the protection of maternal health.
The viability line: “[T]he concept of viability, as we noted in Roe, is the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb, so that the independent existence of the second life can, in reason and all fairness, be the object of state protection that now overrides the rights of the woman. . . . The viability line also has, as a practical matter, an element of fairness. In some broad sense, it might be said that a woman who fails to act before viability has consented to the State’s intervention on behalf of the developing child” (p. 250).

Justice Scalia, dissenting: “I confess never to have heard of this new, keep-what-you-want-and-throw-away-the-rest” adherence to precedent.

The Pennsylvania law at issue (the first four are exempted in the event of a statutorily defined “medical emergency”):

Counseling on, inter alia, “alternatives to abortion”
24-hour waiting period
Parental consent for minors
Husband notification for married women
Mandatory reporting

Applying the undue burden test, the plurality agreed that the only constitutional violation was the husband notification requirement, which it struck down along with the part of the reporting requirement having to do with husband notification.

In a separate opinion, Justice Blackmun, the author of Roe, would apply strict scrutiny to strike down all five provisions.
Justice Stevens joined the part of the plurality opinion to strike down the husband notification requirement, but he argued that the plurality misapplied the undue burden test to the content-based counseling and 24-hour waiting period requirements, which he would strike down under the undue burden standard [unfortunately, we don’t have the time to get into this].

Dobbs v. Jackson Women’s Health Organization (2022)

At issue is Mississippi’s 15-week abortion ban with exceptions for “medical emergency” and “severe fetal abnormality,” designed speciﬁcally to test Roe and Casey.

The district court enjoined the law; a unanimous Fifth Circuit panel affirmed.
On May 17, 2021, the Court took up the case to decide “[w]hether all pre-viability prohibitions on elective abortions are unconstitutional.”
The state swiftly changed litigation strategy after Justice Barrett replaced the late Justice Ginsburg on the Court.

The Glucksberg test: A liberty interest constitutes an implied/unenumerated fundamental right if and only if it is

“deeply rooted in this Nation’s history and traditions”; and
“implicit in the concept of ordered liberty” such that “neither liberty nor justice would exist if they were sacriﬁced.”

In Washington v. Glucksberg (1997), the Court applied this test to hold that there is no implied fundamental right to physician-assisted suicide.

The Dobbs Court’s argument: Because the right to abortion fails the Glucksberg test, rational basis review applies.

(1) Is this the right application of the Glucksberg test? The Court focuses on English common law that predated the founding of the United States as well as history at the time of 14th Amendment’s ratiﬁcation:

Abortion was a common law crime after quickening (roughly 16–18 weeks of pregnancy).
Most states outlawed abortion at all stages of pregnancy in 1868

Some immediate worries:

Even assuming the relevance of common law, the 15-week ban is prior to quickening?
Why should we defer to what most states did in 1868 when ratifying the 14th Amendment was meant to (radically, nonetheless) change what would constitute permissible legislation?
More generally, which part of “this Nation’s history and traditions” is relevant for thinking about which liberties are fundamental?

(2) Why is the Glucksberg test even relevant? Note that here the Court is applying the Glucksberg test to Roe and Casey retroactively.

Would the other fundamental rights survive the Glucksberg test?

Skinner v. Oklahoma (1942): right against compulsory sterilization.
Griswold v. Connecticut (1965) & Eisenstadt v. Baird (1972): right to contraceptive use.
Loving v. Virginia (1967): right to interracial marriage.
Lawrence v. Texas (2003): right to same-sex intimacy.
Obergefell v. Hodges (2015): right to same-sex marriage.

The Court: don’t worry, because abortion is diﬀerent.

What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion destroys what those decisions call “potential life” and what the law at issue in this case regards as the life of an “unborn human being.” (p. 33)

Is this distinction even based on history/tradition? Also, one can certainly believe that contraceptives (and by a slight stretch of the imagination, even same-sex intimacy and marriage?) destroy potential life?

The Equal Protection Argument for Abortion Rights

Geduldig v. Aiello (1974): pregnancy discrimination is not discrimination on the basis of sex under the Equal Protection Clause.

The California insurance program does not exclude anyone from benefit eligibility because of gender but merely removes one physical condition—pregnancy—from the list of compensable disabilities. While it is true that only women can become pregnant, it does not follow that every legislative classification concerning pregnancy is a sex-based classification . . . . Normal pregnancy is an objectively identifiable physical condition with unique characteristics. Absent a showing that distinctions involving pregnancy are mere pretexts designed to effect an invidious discrimination against the members of one sex or the other, lawmakers are constitutionally free to include or exclude pregnancy from the coverage of legislation such as this on any reasonable basis, just as with respect to any other physical condition.

The lack of identity between the excluded disability and gender as such under this insurance program becomes clear upon the most cursory analysis. The program divides potential recipients into two groups—pregnant women and nonpregnant persons. While the first group is exclusively female, the second includes members of both sexes. The fiscal and actuarial benefits of the program thus accrue to members of both sexes.

Dobbs:

[W]e brieﬂy address one additional constitutional provision that some of respondents’ amici have now oﬀered as yet another potential home for the abortion right: the Fourteenth Amendment’s Equal Protection Clause. . . . Neither Roe nor Casey saw ﬁt to invoke this theory, and it is squarely foreclosed by our precedents, which establish that a State’s regulation of abortion is not a sex-based classiﬁcation and is thus not subject to the “heightened scrutiny” that applies to such classiﬁcations. The regulation of a medical procedure that only one sex can undergo does not trigger heightened constitutional scrutiny unless the regulation is a “mere pretext designed to eﬀect an invidious discrimination against members of one sex or the other.” [cites Geduldig] (p. 31, my emphasis)

Some questions:

How persuasive is the deference to precedent when Roe is one year older than Geduldig?
While the easy way out is to argue that abortion restrictions are sex discriminatory precisely because only one sex can undergo abortion, the really diﬃcult question is how to do this when you realize abortion is in fact not unique to women?