November 13, 2019

A Better Legal Basis for Abortion Rights

“It’s increasingly clear that Roe v. Wade, the U.S. Supreme Court decision protecting a woman’s right to choose abortion, is in jeopardy. But what is Roe all about? Privacy? Liberty? Women’s equality?

Its survival may depend partly on the answer, so let’s go back to first principles.

The Roe opinion, written by Justice Harry Blackmun in 1973, was entirely about privacy. As Blackmun put it, the right of privacy “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

For two reasons, that’s awkward. First, the U.S. Constitution does not protect a general right of privacy at all. Second, any right of privacy, if it does exist, would not seem to encompass the right to choose abortion. Privacy usually refers to the right to control access to personal information. 1 What does abortion have to do with that?

In 1992, the court switched gears. In an opinion jointly written by Justices Sandra Day O’Connor, Anthony Kennedy and David Souter, the authors spoke not of privacy but of liberty. They said that “there is a realm of personal liberty which the government may not enter.”

They added that a “mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she can bear” — suffering that “is too intimate and personal” for government to override.

The word “liberty” is in the Constitution, so it’s an improvement on “privacy.” In ordinary language, liberty does include the right to make intimate and personal decisions.

Still, the Constitution does not protect all such decisions. You can’t marry your mother, or more than one person. There is no constitutional right to smoke cigarettes. Liberty can be curtailed when the interests or rights of others are at stake. What about the fetus?

In a short, cautious essay published in 1985, eight years before she joined the Supreme Court, Ruth Bader Ginsburg struggled with these issues. She made two points. First, she argued that Roe badly overreached. In her words, “the court ventured too far in the change it ordered.””

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