What does it mean to have the right, constitutional or otherwise, to have an abortion? Where does that right come from, and how far does it extend? This is a question that has intrigued me as I have studied the Supreme Court’s abortion jurisprudence and as I have read various arguments coming out of the pro-choice camp. The answer to that question has been anything but clear.
Take, for instance, the implications of the Born-Alive Infants Protection Acts (BAIPAs), both federal and state, which I have discussed at length. If the right to have an abortion means nothing more than the right to end an unwanted pregnancy, then doing everything possible to save the life of the fetus/infant, once he is out of the mother’s body, does not impinge upon that right. For that matter, there should be no constitutional problem with, say, a law that required that the fetus/infant be delivered intact and living for every abortion and that all reasonable measures be extended to save the life of the delivered child. And, if technology were so advanced that an unborn child, at any stage of development, could be safely transplanted from her mother’s womb into an incubator in which she could fully develop (think Brave New World), then that too would seem to not affect the abortion right.
However, as opposition to the BAIPAs intimates, many do not regard the abortion right as simply the right to end an unwanted pregnancy. Instead, they view the abortion right as, or extending to, the broader right not to beget a child at all – i.e., the right not to reproduce. Under this view, it would not be enough if a conceived embryo or a more developed fetus could be safely and easily removed from his mother’s body and brought to term elsewhere. The problem is that the child would be born at all.
Is that the abortion right? Well, once again, the Supreme Court has been anything but clear. As anyone who has studied constitutional law knows, Roe v. Wade did not simply spring from nowhere. Roe was preceded by a string of cases that first established the modern “right to privacy” as the right to use contraception (and, in one case, the right not to be compulsorily sterilized). And that right to contraception was predicated upon a right to choose not to have children if one didn’t want to have children. That, in and of itself, is not necessarily objectionable. As an entirely abstract matter, people should have a right to choose not to have children.
The issue, however, becomes how far that right not to reproduce extends. At one extreme, we can all agree that the state should not be able to force anyone to have children – e.g., by mandating sex and pregnancy. In the middle, is the question of whether, if people make the private decision to have sex, they have a right to prevent conception by using contra-ception. Although some people do not believe in this right, often for religious reasons, I think most people are willing to agree to disagree. There haven’t exactly been marches in the streets protesting non-abortifacient contraceptives. But at the other extreme, many people contend that the right not to reproduce covers not only the right to avoid conception, but the right to undo conception.
That is why the Roe opinion’s citation of previous contraception decisions should raise an eyebrow. Observe.
Several decisions of this Court make clear that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. Loving v. Virginia, 388 U.S. 1, 12; Griswold v. Connecticut, supra; Pierce v. Society of Sisters, supra; Meyer v. Nebraska, supra. See also Prince v. Massachusetts, 321 U.S. 158, 166; Skinner v. Oklahoma, 316 U.S. 535, 541. As recently as last Term, in Eisenstadt v. Baird, 405 U.S. 438, 453, we recognized “the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” That right necessarily includes the right of a woman to decide whether or not to terminate her pregnancy. “Certainly the interests of a woman in giving of her physical and emotional self during pregnancy and the interests that will be affected throughout her life by the birth and raising of a child are of a far greater degree of significance and personal intimacy than the right to send a child to private school protected in Pierce v. Society of Sisters, 268 U.S. 510 (1925), or the right to teach a foreign language protected in Meyer v. Nebraska, 262 U.S. 390 (1923).” Abele v. Markle, 351 F.Supp. 224, 227 (Conn. 1972).
Roe v. Wade, 410 U.S. 113, 169-170 (1973).
The Roe Court could have just said, “A woman has a constitutional right to end a pregnancy.” That would have logically followed from the Court’s extended discussion about the health risks involved in carrying a child to term and the Roe trimester framework that grew out of those health risks. But the decision to ground the right to abortion in the right not “to bear or beget a child” has disturbing implications. If that right extends throughout pregnancy, then to simply safely remove the child from the mother’s body is not enough; the child must also die. If that right extends beyond pregnancy, then at least some type of right to infanticide must necessarily exist as well.
Power often inheres in ambiguity. A government agency whose powers are loosely and unclearly defined will almost certainly resolve every ambiguity in favor of greater power for itself. Likewise, we cannot expect to curtail the “abortion right” until we first clearly define what it is, and most importantly, what it is not.
