BY DAVID ’02
In the debate over abortion, one issue that seems to have been swept under the rug is the propriety of the 1973 Roe v. Wade decision itself. The mantra of “Judicial Activism” has been repeated so often that many people on both the Left and the Right seem to have accepted the notion that, for good or bad, Roe v. Wade was an instance of extreme judicial activism, a case of judicial legislation. Indeed, many point to the Roe decision as the most egregious example of such. I think this is a mistake.
Whether one believes that the act of abortion is morally wrong or not is obviously irrelevant to the calculus of whether Roe v. Wade was properly decided. What was and remains at issue is whether a state has the right under the U.S. Constitution to criminalize abortions and their facilitation. If one accepts that there is at least a minimum right to privacy against state action contained in the Bill of Rights and the Fourteenth Amendment, then it seems fairly clear that a state must justify any intrusion into a citizen’s privacy with some sort of state interest, whether “significant,” “substantial” or “compelling.” And until fetuses are considered legal “persons,” it seems extraordinarily difficult to make a coherent argument that there is a compelling state interest in a State prohibition on abortions.
Now the first thing that Roe critics attack is the “judicially created” implied right to privacy. Admittedly, this is the weakest link in the reasoning of the Roe Court. The Constitution does not explicitly mention such a right. However, what I would point out is that, as Brennan describes, there is a long line of decisions, dating back at least to the late 1800s, wherein the Court has seemingly enforced some sort of privacy right against state action, whether in the context of viewing pornography in one’s home, protection against wiretaps and other surveillance, the use of contraception, or protection against forced stomach-pumping. As such, one can minimally claim that a large number of justices since the adoption of the Fourteenth Amendment have interpreted the Constitution to include such a right against intrusive State interference. Therefore, one can boldly state that there is at least a reasonable interpretation of the Constitution that includes some right to privacy against the states. And unless one is a Confederacy advocate who believes that the Fourteenth Amendment should have no or little effect upon the autonomy of the states, one might take pause to consider the ramifications of an alternative interpretation. In the absence of a right to privacy against state ac-tion, what would prevent the leaders of Massachu-setts from implementing, say, a mandatory diet of wheatgrass juice and clam chowder on its residents?
If we accept that there is even a minimal right to privacy embodied in the Fourteenth Amendment, whether in the Due Process Clause, or in its Privileges and Immunities Clause, it would seem apparent that when a state acts or legislates in a way that intrudes on individual privacy, it needs to justify such intrusions. Clearly legislation that prohibits the ability of women to have abortions is an intrusion into their sphere of privacy (just as a law that would require women to have abortions would be), and so it follows that the State needs to provide a justification for such an intrusion.
Now, obviously, both in 1973 and today, the major justification proposed by the pro-life camp is the protection of the human fetus. And one of the major criticisms of the Roe decision is that, in unilaterally declaring fetuses not to be “persons” and by denying the states the power to make that declaration, the Court was usurping the power of the states and legislating from the bench. But why isn’t this a proper constitutional interpretation? After all, as the Court notes, every mention of “person” or any similar noun in the Constitution, including the Fourteenth Amendment, is described only in a postnatal sense (e.g., “citizens” are “persons born or naturalized in the United States”). And, in fact, this is consistent with the history of judicial interpretations of the Constitution.
Since certain rights are guaranteed to “persons” by the Constitu-tion and certain limitations are placed on the States vis-à-vis “persons,” it is simply idiotic to grant the several states the power to define “persons.” If this were the case, states could effectively bypass all constitutional protections by simply redefining “person,” defeating the entire purpose of the Fourteenth Amendment. If states can decide who falls under constitutional protection, the Constitution is effectively null and void, as applied to the states. To illustrate, we can posit a state, which, noticing that a certain class of immigrants was lactose-intolerant, passes legislation denying “personhood” to all those who failed a “milk drinking” test.
There is also a weaker form of this pro-life argument, which claims that states should not have the power to define “person” for the purpose of constitutional issues, but should be able to add new classes of “persons” to serve the purpose of countervailing state interest. But this argument is still problematic for the same reasons. Under this standard, why couldn’t a State dominated by anti-gay activists decide to pass legislation granting personhood to the HIV virus, effectively preventing any medical care for HIV+ people? Or what would prevent a state controlled by vegans from declaring all animals to be “persons” to prevent meat eating? While these are obviously absurd scenarios, I don’t see a substantive difference, from a legal perspective, between these examples and an attempted prohibition on abortion by granting “person” status to a fetus, to counter a woman’s constitutional privacy interests. If we are going to have national constitutional rights guaranteed to “persons,” it is incoherent to allow these rights to be denied, based on local definitions of “persons.” To do so would render these national rights meaningless, subject to state majoritarian whims.
Basically, I’m not trying to make any moral arguments; what I am trying to point out is that: a) Roe v. Wade was a good decision (which may be why it received a 7-2 vote) and b) many of the current attempts to “overturn” Roe, whether on the legislative or judicial fronts, are inherently based on ideas that are antithetical to constitutionally guaranteed liberties. There is a fundamental tension between most pro-life proposals and the Fourteenth Amendment. It may be the case that the Fourteenth Amendment is gutted, as the pro-life movement’s prolonged emphasis on judicial litmus tests culminates in a reversal of Roe. But I do not think that the Fourteenth Amendment in its current form and state prohibitions on abortion are compatible, in the absence of a Constitutional amendment declaring fetuses to be persons.