Alabama has recently been turning heads after Governor Kay Ivey signed one of the strictest measurements against abortion in the United States. The bill essentially bans doctors from carrying out the procedure, and those who do risk a felony offense. A Huffington Post/YouGov poll revealed only 31% of people in the United States say they approve of the new abortion law. This law represents another flare in the divisive discussion of the legality of abortion in society.
Abortion is a medical procedure, which should be protected on the basis of privacy. Privacy is a constitutionally protected liberty. The Supreme Court has determined that abortions are constitutionally protected, specific to privacy. As a result, reversing this decision would have lasting consequences.
While many agree that Roe v Wade was important, not everyone agrees it was healthy for society. Roe protected women’s autonomy and right to privacy. Roe did not, however, resolve the issue in the long term. Abortion, along with other issues related to reproductive rights, continue to be attacked. By some measure, Roe made things worse.
The best way to secure abortion as a fundamental liberty related to reproductive rights, personal autonomy, and privacy, is through the legislative process. Up to, and including, constitutional amendments both at the state and federal levels.
Democratic Processes Define and Secure Liberties
Antonin Scalia once stated the following:
“The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”Planned Parenthood v. Casey (1992)
Scalia fiercely defended the idea that if something was not in the constitution, it was not protected. While I disagree with much of Scalia’s positions and don’t generally prescribe to single models of interpretation, Scalia was often on point when it came to other matters. The importance of democratic processes being one of them.
I do not mean to say that reproductive rights should be up for debate, rather say that they invariably are, just as many other aspects of our society and culture have been. Abortion, and whether it should be legal, is fundamentally a values judgment. Those who value reproductive autonomy and privacy tend to fall in the pro-choice camp. Those who believe that the state should intervene on this tend to be pro-life. The pro-life camp also vehemently believe that life begins at conception. The debate then is how we balance these competing values: state vs privacy, life vs autonomy.
Abortion is, of course, not the only unenumerated liberty that the Supreme Court would later find are constitutionally protected liberties.
For example, interracial marriage, birth control, sodomy laws, same-sex marriage, and even alcohol, have all been tethered to the moral fabric of America. Whether we like it or not, all of these issues have gone through the tumultuous rigmarole of social and political change to finally be accepted as protected liberties and noncriminal acts.
All of these liberties have also been a victim to the ebbs and flows of an ever-changing moral perspective. Equally, all of these rights required decades of activism and education to achieve a basic cultural agreement on the matter before the Supreme Court could hand down a decision. Doing so would be less dramatic, and therefore more emblematic of protecting a clearly established social norm, and therefore liberty.
It is through the democratic process that the Supreme Court can protect liberty through the lens of precedents and objectivity, rather than pontificate one moral side of an argument over another.
Social Change Takes A Lot Of Time
It takes decades for social attitudes to change. Entrusting the judicial branch to unilaterally force such changes can have detrimental impacts. This principle applies to abortion as it has to other issues.
Consider sodomy laws. During the colonial era, sodomy was a crime punishable by death (although rare). This included, among other things, anal sex, oral sex, and bestiality. It is indisputable that these three things are different.
It was not until 1963 (more than 350 years) that the first sodomy laws were repealed. It would take 40 more years for more than half (31) of the states to fully repeal their sodomy laws. It was at this moment that the United States Supreme Court ruled in Lawrence v. Texas (2003) that laws criminalizing or prohibiting sodomy were unconstitutional.
Anti-miscegenation laws are another example. Similarly to sodomy, these laws began in the colonial era. There were more regional differences among these laws, though. Some states passed laws, some repealed, and yet others did not enforce their laws. Throughout the late 1880s and the late 1940s, there was a rise in anti-miscegenation laws, which were upheld by the Supreme Court in Pace v. Alabama (1883). Eighty-four years passed before the Supreme Court reversed its judicial opinion on the matter in Loving v. Virginia (1967).
Same-sex marriage was recognized after 43 years. The Supreme Court refused to address the matter until after 31 states had, for the most part, legalized it, which culminated in Obergefell v. Hodges (2015)
Legal precedence is the backbone of a justifiable decision protecting unenumerated liberty. For example, the Court ruled in Pace v. Alabama that anti-miscegenation laws did not violate the Fourteenth Amendment based on a technicality. The plaintiff in the case was appealing the criminal aspect of the case, rather than challenging the constitutionality of the actual ban. As it were, the court didn’t affirm the constitutionality of these laws, as much as it affirmed the criminality that followed from these laws. The Court explained that there was no violation since both white and black individuals were punished.
Prior to Loving v Virginia, the Supreme Court struck down a Florida law that banned interracial cohabitation in McLaughlin v. Florida (1964). Similarly, prior to the Supreme Court recognizing same-sex marriage in Obergefell v. Hodges, the Supreme Court struck down Section 3 of the Defense of Marriage Act in Windsor v. United States (2012). Same-sex marriage didn’t just have the backing of the Supreme Court precedence, but this particular issue underwent an immense amount of scrutiny at the state level as well.
Roe Turned Everything Upside Down
So what does all of the above have to do with abortion? First, democratic processes matter. Each of the aforementioned issues experienced a good level of societal support by the time the Supreme Court intervened. Each of these issues did not become rights because the Supreme Court ruled so; they became rights because society said so.
Roe v. Wade is the opposite. When the Supreme Court decided this case in 1976, 30 states continued to enforce laws that made abortion illegal. 20 states allowed abortions, but of those only 13 allowed it for cases of health, rape, or incense, and only four allowed it for any reason.
Arguably, part of the issue is the over-reliance on the court to resolve abortion-related matters. The democratic process requires that states figure this out on their own first.
In all of the above instances, the Supreme Court validated the results of a democratic process. Roe, on the other hand, upended this by validating the opposite result of the democratic process. The Supreme Court ought to validate liberties, rather than pontificate them.
That said, the court is an important element to the democratic process. Nothing in this piece should be construed to suggest that the courts should stay out of the abortion debate.
Some Considerations On The Abortion Debate
Alabama’s most recent abortion law is abhorrent. Worse still is the fact that the law criminalizes a constitutionally protected right. Given the precedent set in Planned Parenthood v. Casey (1992), this law will fall victim to the guillotine, as it should. The Alabama law is clearly unconstitutional on its face because it creates an undue burden.
Opponents of abortion strongly believe that life begins at conception. A part of this belief holds that a fetus, being a person, should not be executed because they are innocent beings. Therefore, the only valid reason to allow abortion would be in order to save the mother’s life.
Subsequently, if one believes that life begins at conception, one cannot justify abortion for rape or incest. That is to say that a person conceived through violent means is just as innocent as a person born through natural means. So what’s to consider?
First, exceptions are important. When a person kills another out of self-defense it is not murder. But when a person kills another out of rage, it is. The intent is an important element in any determination of wrongdoing.
Second, criminalizing abortion is a disastrous approach. This will, without a doubt, put women’s lives in danger. The rule of law is important, but we do not justify such rules by wantonly making criminals out of women.
Third, abortion is constitutionally protected because there is a right to privacy. Reversing such protection is tantamount to saying that women do not have such a right to privacy. At best, the argument suggests that they do have a right to privacy, but not as strong as men.
The pro-life camp must learn to play fair. There can be no justice when certain elements of their arguments boil down to propaganda. An example of this is by showing pictures of partial birth abortions when this is a rare instance of abortion.
Finally, calling women who have abortions murderers is a poor method of persuasion. Name calling only serves to ostracize.
Will The Issue of Abortion Ever Be Resolved?
Maybe. People – i.e., state legislatures, must first decide on a number of factors before any realistic conclusion can be made. This is where the democratic process comes in.
As I said before, I am not arguing about whether abortion ought to be up for debate, but rather that it is. It is from this plain that we must function, otherwise, we’re fighting two different fights, with two very different endings. It may feel at times that we are entertaining the whims of old white men at the expense of women. But abortion is a topic that has penetrated the psyche of more than just old white men.
Moreover, throughout all of human history, the rights of individuals have always been subject to the discretion of other individuals. Whether those individuals were monarchs or elected officials doesn’t matter. Democracy allows people not only to have a say on what their society entails but also a chance to ease into changes gradually. Revolution serves an important function, but not every issue requires a revolution in order to win.
Society must determine for itself the answers to a variety of questions before an abortion can retain its protections. Some of those questions include: Does life begin at conception? If life does begin at conception, when does that life become a “person”? What would the consequences of adopting fetal personhood as a legal model? Assuming that a fetus is a person does this allow for exceptions on the basis of medical autonomy? Does the right to medical autonomy end at conception? What are the consequences of forcing women to carry a fetus to viability and or birth? If there are exceptions in cases of rape and incest, why can’t there be other exceptions?
The above questions are only a few to consider. Ultimately, both science and religion can only help to inform what will fundamentally be a democratic decision. Requesting that the court intervene is a short term solution without a long term fix.