Why I’m Pro-Abortion and Anti-Roe

I believe there should be a regulated right to abortion. The fact that this is simultaneously America’s majority opinion yet wildly controversial shows how irrational our politics have become.

But while I favor abortion rights, I agree with Supreme Court Justice Samuel Alito’s leaked draft opinion that Roe v. Wade was wrongly decided. The furious reaction to this conclusion reveals our decaying understanding of and commitment to liberal democracy.

The legality of abortion should be our starting point. There are many reasons a woman might choose to have an abortion—rape, incest, fetal deformity, youth, maternal health, economic straits, “not ready to have a child” and others. These reasons are entitled to society’s respect, because we respect the mother’s autonomy. A woman should be able to decide whether to bear children. “My body, my choice” is the sort of philosophy a free people should embrace.

But not always.

For example, polio, measles, tuberculosis and other terrifying diseases are contagious. If you’re infected, what you do with your body affects the public at large. Thus, public health considerations may lead governments to override “my body, my choice” by requiring vaccinations to prevent epidemics of crippling, lethal diseases.

Similarly, “my body, my choice” is an insufficient moral or legal principle for governing pregnancy because the mother’s body contains another person, or potential person, within her. The rights of the fetus or unborn child must be considered.

A common retort is that the fetus or unborn child is not a “person,” and therefore cannot have “rights.” At the end of this logic lies the conclusion that abortion is permissible, for any or no reason, up to the moment of birth. But I see no moral difference between a child the moment before birth and the same child the moment after. The vast majority of even pro-choice Americans reject this extreme position.

Thus, the right to abortion, like all rights, is subject to legal oversight. In my view—the majority view—fewer protections should be given to the fetus or unborn child in earlier stages of a pregnancy. But as the pregnancy progresses and the fetus’s capacity to survive outside the womb increases, the fetus should have more protections and rights. However, when the pregnancy threatens the life or health of the mother, even late-term abortions are justified and perhaps even required.

Roe v. Wade is, overall, good social policy because it largely tracks these principles. Had Roe been passed by Congress or state legislatures, I would support it. But good social policy is not necessarily good constitutional law.

A liberal democracy is first of all a democracy. Public policy issues are debated and enacted in the legislature, where compromises are often required to achieve a workable majority to pass a bill. In this way democratic, majoritarian legitimacy is maintained.

However, a genuinely liberal democracy is also a rights-based government. Legislative majorities can’t revoke or degrade certain rights because they are enshrined in the Constitution. If a law, however popular, attempts to violate a constitutional right, the courts declare the law invalid.

Which rights are in the Constitution, then? Certainly, the ones that are explicitly stated—freedom of speech, freedom of religion, trial by jury and so on.

So we arrive at the crucial question: What about rights that are not explicitly stated in the Constitution? Judicial recognition of implicit rights creates a serious problem for democracy: If the Constitution is a magic lamp that grants new rights whenever the judiciary rubs it, judges become unelected, unaccountable and irreversible super-legislators. We consequently become a less democratic nation.

The Supreme Court’s answer to this problem is that the Fourteenth Amendment’s Due Process clause does contemplate unmentioned rights, but only those that are “deeply rooted in this Nation’s history and tradition” and are “implicit in the concept of ordered liberty.”

Our deeply-held conviction that abortion should be legal in most instances does not itself make abortion a constitutional right.

As Justice Alito explains at length in his leaked draft opinion, abortion fails this test. Roe v. Wade does not convince. Then-Yale Law Professor John Hart Ely wrote in 1973 that Roe was “not constitutional law and gives almost no sense of an obligation to try to be.” Our deeply-held conviction that abortion should be legal in most instances does not itself make abortion a constitutional right. If we want abortion to be protected by the Constitution, we must amend the Constitution.

Should the Supreme Court overrule Roe v. Wade, abortion rights will not immediately disappear. Congress will consider abortion-rights legislation. Some states will strengthen their protections of abortion by statute or even in their state constitutions. In short, normal democratic politics will resume.

It is true that the prospect of Roe’s demise has led some Republican-led state legislatures to enact truly hideous laws in order to make abortion essentially impossible to legally obtain at any point during pregnancy. We are rightly enraged at these unreasonable attacks on women. But the dawning post-Roe era means we won’t be able to rely on the courts to secure abortion rights. As is appropriate in a liberal democracy, we will have to fight anti-abortion extremism by political means—lobbying, demonstrating and, above all, voting.

Paul Kujawsky is a Los Angeles appellate attorney.