With the retirement of Justice O’Connor, it seems the days are numbered for the decision in Roe v. Wade, 410 US 113 (1973). But things are not always as they seem. I predict that Roe won't be overruled, if John Roberts, or any other Scalia-clone, or even five more of them, were appointed to the Supreme Court. For all practical purposes, Roe has already been overruled, or modified, to give the Court enough legal maneuvering room to make abortion a political issue, rather than an issue of constitutional law. Conservatives on the Court don't want to outlaw abortions, they want to wash their hands of the issue and turn it over to State legislatures. What pro-Choice advocates should expect, and prepare to counter, is a Supreme Court which allows State legislatures to "chip away" at abortion rights: and we already have that.

Abortion will therefore become a political, rather than a legal issue. Countering the pro-Life movement politically requires an understanding of where it comes from and what binds together its disparate elements, so that a wedge can be driven between the ones that can be reasoned with, and those that can't. First, though: let's remind ourselves what's at stake.

Making abortion illegal will not stop abortions, it just makes them unsafe.

The Vatican's doctrine that life, as such, begins with conception was first declared in the 19th Century, at about the same time when the Popes were stripped of their last vestiges of temporal authority in Italy, and their political control confined to a small patch of land we now call Vatican City. Ever since, the Vatican has been free to speak as an outsider to government and adopt a clear, unambiguous and intellectually defensible position, without regard for the actual consequences, were such a policy enacted into positive law.

The United States Supreme Court has no such luxury. Where the Vatican can declare an act immoral, or even "a supreme dishonor to the Creator" ( Gaudium et spes, 27) the Supreme Court can only declare an act illegal. A law prohibiting and punishing an act may deter it, but all it does for certain is make the act illegal. In the case of abortion, that means abortion becomes a threat to the lives of women who will seek abortions anyway, regardless of their legality.

There is a difference between "moral" and "legal". A moral judgment states what people should do, if everyone were to behave morally. A legal judgment states what punishment should be imposed when someone has done what should not be done. The Ten Commandments teaches that coveting your neighbor's goods is immoral, but the law only intervenes when you steal them. Morality prohibits absolutely and regardless of the consequences. Law is all about particular circumstances and consequences. Theoretical objections to "moral relativism" make no sense at law. Law is by definition relative to a particular society. Law must be made actual and particular by the proclamation of a tyrant or by the decision of a government body, or the law has no authority. Actual laws, as opposed to moral pronouncements, must take into consideration the fact that laws will be broken. As a general rule, when you make something illegal, you make it more dangerous.

An example of this is the Prohibition of alcoholic beverages, and a phenomenon called "the Iron Law of Prohibition". 1 When alcoholic beverages were made illegal in the United States, people stopped drinking beer, but the consumption of higher-potency beverages like fortified wines, hard liquor, and even patent medicines with a high alcohol content steadily increased. Social institutions and customs which promoted moderate drinking were destroyed. Local governments lost the ability to control when, where and how liquor may be consumed, who it was sold to and who profited, and lost revenue from taxation.

The same phenomenon can be seen today with respect to recreational drug prohibition. An opium problem becomes a heroin problem. The potency of marijuana available on the black market has increased dramatically. Relatively harmless substances like MDMA are transformed into unreliable street tabs of "ecstasy", which may be adulterated with more dangerous substances or vary widely in dosage. Stimulants which can be manufactured anywhere out of readily available materials, like methamphetamine, have become a pandemic problem, like moon-shining during alcohol Prohibition.

In the case of abortions, when you make them illegal, they will no longer be performed properly by licensed, regulated professionals in a safe environment, but they will be performed nonetheless. Usually this means by the woman herself, perhaps with the assistance of someone who doesn't really know what they are doing, in an unsterile environment without the necessary equipment and supplies to deal with complications. The probable result is hemorrhage and death. If you need a personal story to understand this point, complete with graphic forensic photograph of a woman who died from an attempted self-induced abortion, the pro-Choice movement can provide that.2

When conduct is made illegal, it will still occur. Murder is illegal and yet still happens. The government is then obliged to prosecute. Prosecution requires evidence. Evidence in an abortion case has always been difficult to obtain. Under English common law, if an abortion was spontaneous, i.e. a miscarriage, it was not a crime. Sometimes fetuses die, and a doctor's assistance is required to remove the stillborn child from the womb, or the mother will die, too. These were recognized defenses in any prosecution for abortion. Proving in a court of law that an abortion was induced rather than spontaneous, or that the child was viable rather than stillborn, was rather difficult without modern medical science. (Even today it is unlikely that someone attempting a self-induced or "back-alley" abortion is going to perform an ultrasound examination first.) English common law dealt with the problems of proof by requiring evidence of "quickening": that the pregnancy had progressed to the point where the mother could feel the fetus move in her womb.

Some people try to trace the "quickening" idea to Aristotle's notion that a human being is conceived when lifeless material and animated form are combined, and then contend that the scientific or philosophical basis for the idea has been refuted. For law, however, the scientific or philosophical basis for the rule was always irrelevant. The "quickening" rule (now known the "viability" rule") is not a philosophical doctrine about when a fetus acquires human rights. It is a legal rule designed to make clear when it is practical for the state to prosecute abortion as a crime.

Were the Supreme Court to disavow all constitutional rights to reproductive privacy and hand the abortion issue over to State legislatures, all the factual and practical consequences of making abortion a crime would remain. The same issues wold have to be considered carefully by State legislators and by prosecutors forced to decide whether and when to enforce the new laws. When the dust settled, I am confident that the law would end up, for all practical purposes, exactly where it is today, but with one difference: many women would die. Outlawing abortion will not save babies, but it will kill women. This is not a price we should be willing to pay for moral certainty.

"Roe has got to go."

In a sense, Roe is already gone. The legal rationale was overruled by Planned Parenthood of Southeastern Pa. v. Casey, 505 US 833 (1992). If you are still trying to understand the status of abortion under the United States Constitution by reading the 1973 decision in Roe, you are substantially misinformed. The "right" to an abortion has since been replaced with something in the nature of a legal compromise. Casey affirmed a woman's right to choose abortion in some circumstances, as a "substantive" liberty right created by the Due Process Clause of the Fourteenth Amendment. On the other hand, Casey allows States to impose regulations and restrictions more freely than under Roe. A viable fetus now has a recognized "right to life", which is represented and given legal substance in the form of statutes enacted by State legislatures.

The Fourteenth Amendment provides that life, liberty and property shall not be taken without "due process of law". (The Fifth Amendment contains the same provision, but only applies to the federal government, not the States.) Justice Potter Stewart, in an opinion concurring with the 1973 Roe v. Wade decision, first articulated the view that the "right to choose" abortion is a fundamental liberty interest protected by substantive due process. This became the majority view in Casey, replacing Justice Blackmun's somewhat vague "right to privacy" doctrine in Roe, based on English common law and some rather subtle implications of the Bill of Rights.

"Substantive due process" has a long history, not all of it flattering to the Supreme Court, but out of this history has emerged some rules for lawsuits challenging whether a State law is "constitutional". To keep an abortion statute in force, the State must prove that the statute is supported by a compelling government interest and is narrowly tailored to achieve that goal.

The "narrowly tailored" qualification requires a detailed, case-by-case examination of any challenged law. The Court might generally approve restrictions like parental notifications (as the Court did in Casey) but still hold a particular statute "unconstitutional" because it places an "undue burden" on a woman's right to choose. This encourages litigation as States enact new restrictions and abortion rights advocates sue to get rid of them.

One way of expressing the change in legal doctrine from Roe to Casey is to say that under Roe abortion was a "fundamental right", like the rights to marry or to obtain and use contraceptives. Under Casey, abortion rights have become merely "quasi-fundamental". Now a woman's liberty interest must be balanced with a bundle of government interests, including an interest in protecting potential human life (the fetus' "right to life"), protecting minors, supporting parental authority, and general interests in the people's health, safety and welfare. In short, while a woman has a constitutionally-protected privacy interest in choosing to have an abortion before viability, the state has a countervailing interest in protecting "potential life," even before viability. No Supreme Court Justice, no matter how extreme their views, advocates abolishing this framework and outlawing abortion. Rather, conservatives would give State legislatures more freedom to ban more abortions under more circumstances. Subsequent cases have established the following specifics, which might come back into play if the composition of the Court changes:

  • The state does not have the right to ban all pre-viability abortions or even those pre-viability abortions not necessary to save the life or health of the mother.
  • The state may regulate the abortion process provided it does not place an "undue burden" on the woman’s right to choose a pre-viability abortion.
  • A regulation will constitute an "undue burden" if the regulation "has the purpose or effect of placing a substantial obstacle in the path of a woman" seeking a pre-viability abortion.
  • Most state regulation will not constitute an "undue burden," and will thus be sustained.
  • The state may impose an elaborate "informed consent" laws, which may include provisions that at least 24 hours before performing an abortion, the physician must inform the woman of the nature of the procedure, the health risks of both abortion and childbirth, the probable gestational age of the fetus, the availability of state-printed materials, etc.
  • The state may impose "parental consent" laws requiring an unemancipated woman under 18 to obtain the consent of a parent to an abortion, provided that the state must allow for a judicial bypass; it must give the girl an opportunity to persuade a judge that an abortion is in her best interests and that she is in fact sufficiently mature or emancipated that she is able to make this decision for herself.
  • The state may not give a pregnant woman’s spouse a veto right over the woman’s abortion decision.
  • The state may not even require that the woman notify her spouse of her intent to get an abortion, even if the state exempts cases of spousal sexual assault or threatened bodily injury.
  • The state may refuse to give public funding (e.g., Medicaid) for abortions even though they give such funding for other types of operations.
  • The state may prohibit public hospitals from performing abortions.
  • The state may, as a condition of funding family-planning clinics, insist that the doctor or other professional not recommend abortion, and not refer clinic patients to an abortion provider.

This slow, detailed, case-by-case process is unsatisfying to pro-Lifers, just as the slow process of banning slavery state-by-state was unsatisfying to Abolitionists, and the process of banning alcohol state-by-state did not mollify Prohibitionists.

Some pro-Life advocates think that the problem can be "solved" by declaring that an "unborn child" (embryo or fetus) is a "person" under the Fourteenth Amendment. This would not end abortions. Criminals are "persons", but the Fourteenth Amendment has not ended judicial executions in the United States. "Personhood" guarantees only that one will not be deprived of life without "due process". Advocates of a "Right to Life Amendment" to the Constitution do not understand that the Supreme Court already gives the fetus all the legal process which is due. What these advocates really want is to outlaw all abortions from the moment of conception, regardless of any countervailing interests of the mother, family and community. In short, they want total national Prohibition for abortions.

I am confident that this result cannot be accomplished by changing the composition of the Court. Even Justice Scalia, who favors complete deference to State legislatures to make the rules on abortions, does not support outlawing abortion as a matter of constitutional law. A more subtle approach is required by the very nature of Supreme Court review: case-by-case review of actual "cases" and "controversies", pursuant to Article III of the Constitution. Even when a case specifically "overrules" some prior case, as when Brown v. Board of Education overruled the "separate but equal" doctrine of Plessy v. Ferguson, there's always plenty of room for argument, interpretation, exceptions and qualifications.

Some people nonetheless seek to exploit the pro-Life movement to further their own political agenda with respect to the Supreme Court. One slogan of such people is that the Constitution should be interpreted according to its "original intent". In fact, the Court has never operated that way, and never will. Take, for example, the First Amendment guaranty of "freedom of speech" and "freedom of the press". There is no qualifying language. "Congress shall pass no law ... is an absolute, unequivocal statement. The drafters of the Bill of Rights were perfectly capable of using qualifying language when they wanted to leave the government free to abridge a right under certain circumstances. (One example: the Fourth Amendment, which protects against "unreasonable" searches and seizures, suggesting that there are circumstances in which the government can and should search and arrest people). And yet numerous exceptions to First Amendment rights, allowing various kinds of censorship, have been recognized by the Supreme Court over the years. If the free speech and free press clauses of the amendment were interpreted according to its language and original intent, all of the following types of censorship would not be allowed:

Yet you would be hard-pressed to find a conservative who doesn't support all this and more censorship. Conservatives will never apply "originalism" to the First Amendment. Numerous other examples could be given where conservatives would never support a return to the "original intent" of the Constitution, and where they "legislate from the bench". Anyone, liberal or conservative, who has given serious consideration to the structure of a constitutional form of government knows that "legislating from the bench" is a necessary feature of such government.

We have grown accustomed to a historical accident in our lifetime and assume is a permanent feature: a progressive Supreme Court. My own theory is that the Court assumed a progressive role in the mid-Twentieth Century as a reaction to the threats of Nazism and Communism. This was unusual. The United States Constitution was intended to be a framework for governance, not a code of laws or conduct. Unlike the Codes of Hammurabi, Justinian or Napoleon, the Constitution regulates the government, not the governed. It doesn’t have much in the way of specifics. The Framers assumed that specific laws would be crafted by the States, with a few subjects of national importance reserved for the federal Congress, as set forth in Article I, Section 8. The exceptions to this plan were few, were created by dire historical necessity, and were not implemented by the Supreme Court: for example, the amendment prohibiting slavery.

Very early on, the Supreme Court reserved for itself the power to decide what is a “reasonable” abridgment of a constitutional right. Gradually, the United States Supreme Court decided there were certain subjects that were simply beyond the power of State legislatures to regulate. In the Twentieth Century, there were efforts to generalize “the concept of ordered liberty” which creates this constitutional void where State legislatures may not tread. The notions of reproductive privacy which underlie Roe v. Wade, and similar cases such as Griswold v. Connecticut (States cannot criminalize contraceptives), Loving v. Virginia (States cannot criminalize interracial marriage) exemplify this trend. No article of the Bill of Rights nor any subsequent amendment explicitly governs abortion, contraceptives or marriage. Until the 1960s, it was assumed that State legislatures had the last word on these subjects. State legislatures had demonstrated, however, that they could not be trusted to protect the rights of citizens. After World War II, all the justices of the United States Supreme Court were accutely aware that Hitler had been elected by the people. Gross racial inequities existed in America, and were perpetuated by state laws. These were embarrassing during the Cold War, when Communist propaganda could simply recycle reports of lynchings, riots and decaying slums as irrefutable evidence of the defects of capitalism.

The Supreme Court's generalization of “rights”, however, proceeded somewhat haphazardly. Is there are a Constitutional “right” to collective bargaining? To free education? A living wage? Theoretically, such economic and social “rights” follow from a concept of ordered liberty. They have been specifically recognized in the Universal Declaration of Human Rights ( see Articles 23 and 26.) No such "rights", however, are recognized in U.S. constitutional law. Absent some other constitutional defect, such as race discrimination, economic rights in the United States are limited to some protections for "property", and then whatever protections the Congress deems fit to enact. If Congress were to repeal tomorrow the Fair Labor Standards Act, or the Labor Management Relations Act, or any laws which guarantee free and fair access to education, the Supreme Court would not lift a finger to reinstate these laws.

And let’s be clear about the Court’s role in the Civil Rights Movement. First, they took their damn time getting around to it. Emancipation was proclaimed in 1863 and the Civil War ended in 1865. The 14th Amendment was ratified in 1868. Had the Court then immediately entered the decision in Brown v. Board of Education, it still would appear restrained compared to the way it proceeded with Roe v. Wade in 1973, when only a handful of states had passed reformed abortion laws. In fact, right after the 14th Amendment, the Court proceeded to muck things up terribly with Plessy v. Ferguson, then waited nearly a hundred years to correct that mistake. In fact, I would say that the Court’s real shining moment was not Brown, but its refusal to overturn the Civil Rights Act of 1964, in cases like Heart of Atlanta Motel Inc. v. United States, 379 U.S. 241 (1964). Which is to say, the Court’s role in the Civil Rights Movement was never to impose racial equality by judicial fiat, but rather to confirm the national consensus against racial discrimination, after a long, long, long political process.

In short, the Supreme Court was a champion of “freedom” as long as "freedom" did not directly challenge capitalism. Capitalist notions of free choice in a marketplace arguably required that people be free to marry whoever they want, or buy contraceptives, and that women should be free to choose to participate in the workforce and amass wealth, rather than a big family. This moderately progressive position had broad political support, and given the lack of any really strong reaction to the Court's previous rulings, such as the Griswold case on contraceptives, the Justices who voted for Roe seemed not to suspect that it would cause a major furor. But it did, and the Court is not likely to go down this road again any time soon, no matter who is appointed to be a justice.

The Politics of Abortion: an Analogy to Prohibition

The decision in Roe v. Wade has given Puritanical religious fascists a cause to rally broader support. With the slogan against "legislating from the bench", the religious fascists can tap into a broad populist or anti-elitist sentiment which is a permanent feature of the American political landscape. The abortion controversy today unites otherwise reasonable Catholics with religious fascists who, given a chance, would persecute Catholics just like they did in the 18th and 19th Centuries. Similar coalitions are coalescing around the issue of gay marriage. When there is a threat that gay marriage will be legalized by judicial fiat, you can mobilize a whole lot of people to pass referendums to change their State constitution to prevent it.

History teaches us they will not stop until they have gone too far. I am thinking of Prohibition. The scenario which enflamed the emotions and rhetoric of the Temperance movement went something like this: a workman completes his daily labor and heads directly for the nearest saloon. There he spends his family’s wealth on liquor (and presumably, prostitutes). After getting good and drunk he comes home and beats his wife and children. Keep in mind that, in the Nineteenth Century, this was legal behavior. A husband had total control over the family’s money, under the doctrine of coverture, which rendered the wife the legal equivalent of a minor child. Domestic violence and marital rape were lawful. Women had no direct political power to change these laws until the Nineteenth Amendment (effective 1920). The Temperance movement mobilized the Women's Suffrage movement: a lot of the leaders were the same people. In fact, the Women's Christian Temperance Union still exists, though it has expanded its program to include activism against domestic violence.

The Prohibition Party also still exists. Their party platform now includes opposition to Roe and other cases which they deem to be "legislation from the bench". They support a "Right to Life" amendment to the Constitution.

Prohibition was also attractive to progressives who saw alcoholism as a health and social problem. Indeed, for the brief period that national Prohibition was in effect in the United States, there was a marked decline in alcohol-related diseases such as cirrhosis of the liver, and statistically significant reductions in a wide variety of social ills, ranging from drunk driving to domestic violence to admission to mental hospitals. However, these same statistics also suggest that national Prohibition was not really necessary, and perhaps counterproductive. Before the 18th Amendment was ratified, 28 states had already enacted state-wide Prohibition, along with thousands of other counties and cities. Consumption of alcohol was already going down before the 18th Amendment, reaching an all time low in 1921. Then, however, it steadily began to climb back up. With alcohol illegal, efforts to encourage moderation and abstinence were abandoned in favor of law enforcement, which ultimately proved futile.

The transformation of the Prohibition movement from a progressive social movement (which was succeeding in reducing alcoholism) into repressive Puritanical fascism (which was a spectacular failure) occurred mostly at the beginning of the Twentieth Century, and coincided with the rise of the Ku Klux Klan and Christian fundamentalism. Before 1900, Temperance adovcates tended to be utopian social reformers. They were closely allied with the abolitionists and early feminist movement. Utopians viewed alcohol as a social problem. Frances Willard, a leader of the WCTU, styled herself a "Christian Socialist". Generalizing from the fact that alcohol is highly addictive for some people, and from the fact that alcoholism contributes to crime, unemployment, domestic violence, and accidents, the utopians promoted education and voluntary abstinence. After the Civil War, however, these utopians started becoming disenchanted with education. Like all utopian social movements when they become frustrated, the Temperance movement had its violent extremist: the axe-wielding Carrie Nation. (She was mild, however, compared to the Abolitionists like John Brown, or the pro-Lifers like Eric Rudolph). Temperance advocates felt their efforts were always swamped by commercial advertising from the brewing industry, and started targeting the industry itself, legally and politically. Their most successful and enduring tactic was to push for "local option" laws, which allowed cities and counties to declare themselves "dry". Many counties and municipalities in the United States are still "dry" to this day, notwithstanding the failure of national Prohibition.

Then something changed. The goal shifted from "Temperance" to "Prohibition". Around 1913 the Anti-Saloon League, a bi-partisan and very political male-dominated organization, pushed aside the non-partisan Women's Christian Temperance Union at the forefront of the movement. The Anti-Saloon League was well-financed, enjoying the support of Captains of Industry like John D. Rockefeller, and well-staffed with lawyers and lobbyists. The Prohibitionists also gathered some ugly allies: religious fascists like the Reverend Billy Sunday, and "nativists" like the Ku Klux Klan. One of the rhetorical devices frequently used by Prohibitionists was to point to the foreign (i.e. German) control of the brewing industry. At the time, it was not unusual for German-American immigrants to speak very little English, live with other Germans and drink a lot of beer. As the country geared up to join World War I against Germany and Austria-Hungary, the loyalty of these unassimilated German communities came under suspicion. Also, before Prohibition, every European ethnic community has its own favorite kind of alcoholic beverage, and its own places to drink and to sing drinking songs from the old country. This "culture" was considered subversive at the time: assimilation was patriotism. And perhaps it was subversive: before television, the saloon was the place for politicians and activists to communicate and organize.

As everyone now acknowledges, except people paid by the government to concoct propaganda supporting the War on Drugs, Prohibition collapsed under the weight of enforcing it, and as a result of the "Iron Hand" phenomenon. Popular support waned when the expected social benefits failed to materialize, and evaporated entirely with the arrival of the Great Depression. Before it was exhausted as a political force, however, the Republican Party used Prohibition as a wedge issue in the 1928 presidential election between Herbert Hoover and Al Smith. The Republicans used the Democratic nominee's support for repeal against him, as well as his Irish Catholic heritage and the fact that he was four times elected Governor of New York. (The same tactics could be seen in the last election, against John Kerry, and will probably be used again if Hillary Clinton is nominated for 2008.) Whatever one may think of Herbert Hoover the man (and I happen to think he was a great man) the policies of his party and administration led this country and the world into ruin, and set the stage for the rise of Hitler, Stalin and the cataclysm of World War II.

The lesson of 1928 is that the fascist coalition which has co-opted the pro-Life movement must be destroyed. If it takes overruling Roe v. Wade to do that, then Roe has got to go. In fact, though, overruling Roe is neither necessary nor likely to achieve anyone's objectives. Rather, the battle will more likely shift to the grassroots political arena, and this is where progressives need to focus their attention and organization.

1 Thornton, Mark; "Alcohol Prohibition was a Failure"; http://www.cato.org/pubs/pas/pa-157.html

2 See Loonan, Peggy; http://www.lifeandlibertyforwomen.org/issues/issues_morality_of_legal_abortion.html

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