I continue to follow what’s happening with, and think about, the issue of abortion, both as an issue in itself and as a legal issue in the U.S.
Tomorrow, Wednesday, December 1, 2021 is a big day in these respects.
The case of Dobbs v. Jackson Women’s Health Organization gets argued in SCOTUS tomorrow. It involves a Mississippi law that, broadly speaking, bans abortions after 15 weeks of pregnancy, which is to say, just shy of 4 months. The challengers say the law is unconstitutional and cite the precedent of the notorious Roe v. Wade and SCOTUS cases following it, namely Planned Parenthood v. Casey.
The defence of the rightness of its law by Mississippi, and collaterally by various “friend of the court” briefs, includes an all out assault on Roe v. Wade. Needless to say, this case and the issue of abortion have been pivotal in the U.S. culture war and have done as much as anything to divide left and right.
So tomorrow marks a huge step along the way to the continuation of the right to an abortion in U.S. law, which then has massive political and cultural ramifications.
For the right, the moment is as close to ideal as it could be, with 6 conservative or conservative leaning justices—Thomas, Roberts, Gorsuch, Kavanaugh, Alito and Coney Barrett—and three liberal ones—Kagan, Breyer and Sotomayor.
For anyone interested, you can listen to the oral argument here: https://www.supremecourt.gov/oral_arguments/live.aspx
My own view has disparate parts. I never thought Roe v. Wade was wrongly decided, despite a loud chorus of condemnation of its reasoning from many prominent legal academics across the political divide. In a nutshell, my view was and remains that liberty entails privacy and privacy entails bodily autonomy. The limiting principle to my view in the case of abortion is the life of the aborning child.
The current dividing line for legal recognition of that life given the stream of pregnancy is fetal viability, when the fetus can survive outside the mother’s womb. Under present U.S. law fetal viability occurs at around 24 weeks, just a shade under 6 months. So the Mississippi law is quite radical at making 15 weeks the limit on the right to an abortion.
Case law subsequent to Roe v. Wade has bolstered its underpinning. I outlined that here: http://tinyurl.com/2p8nzajz
I did so by a thought test under which I substituted a tonsillectomy or a appendectomy for an abortion.
Despite my legal view, I have come personally to think that that 6 months is too long and that 12-16 weeks is a more humane limit given the state of the fetus then.
My personal view notwithstanding, below is an oped by Charles Fried. He accessibly cites the central underlying point of bodily autonomy as the key unlocking the door to a constitutional right to an abortion.
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From Today’s NYT By Charles Fried
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….Mr. Fried, a law professor at Harvard, served as solicitor general under President Ronald Reagan.
In 1989 I argued before the U.S. Supreme Court in Webster v. Reproductive Health Services, a case challenging a Missouri statute that forbade the use of any state funds or facilities for the conducting of abortions.
On behalf of the United States I argued that Roe should be overruled, except in extreme cases such as when the life or health of the pregnant woman was at risk. I made these points in good conscience, drawing on a mix of history, precedent and what I saw as the interests of the rule of law.
I was a law clerk to Justice John Marshall Harlan II in 1961 when he dissented in Poe v. Ullman, a case involving the liberty of married couples to use contraceptives without interference or inquiry by the government, and provided what I then considered — and still do — the foundation of the law of privacy and personal dignity.
Abortion implicates not only those liberties of the pregnant woman but also, in the opinion of some, the life of another person, the fetus. Although personally agnostic on that issue, I did not see how the Constitution provides a principled basis for answering the question.
That Roe was a poorly reasoned extrapolation from the contraceptive cases was a position taken by many constitutional scholars, including John Hart Ely, Paul Freund and Archibald Cox. As Justice Ruth Bader Ginsburg correctly predicted in a later talk at New York University, it was a leap that would shadow the law for decades to come. Perhaps better to have left it to legislation and the development of public opinion.
In 2005, testifying in favor of the confirmation of John Roberts as chief justice, I said that I thought he was too good a lawyer — a conservative in the manner of Edmund Burke and John Harlan, not a reactionary — to vote to overrule Roe. Senators Arlen Specter and Dianne Feinstein reminded me that I had argued the opposite about Roe 16 years before in the Webster case.
My answer then, as now, is that the law had changed since 1989. In the 1992 case of Planned Parenthood of Southeastern Pennsylvania v. Casey, a joint opinion of Justices Sandra Day O’Connor, Anthony Kennedy and David Souter reaffirmed the central holding of Roe and put it on a firmer constitutional basis: the dignity and autonomy of the pregnant woman and the equal rights of women more generally.
Since that time, Casey had been cited and used as a basis of constitutional reasoning in many decisions in many areas of the law, including gay rights and the parental rights of a surviving parent. The decision has not only taken root; it has flourished and ramified.
To overturn Roe now would be an act of constitutional vandalism — not conservative, but reactionary.
When I argued Webster and made the case that overturning Roe would not undermine the broader foundation of privacy, I learned a lesson in the use of metaphor.
Seeking to invoke my mentor John Harlan, I said I was not urging the unraveling of the whole fabric of substantive due process and unenumerated rights, but only to pull this one thread. To which my opponent replied that in his experience every time he pulled a thread on his sweater, the sleeve fell off…
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