Abortion rights "The heart of liberty is the right to define one’s concept of existence, of meaning, of the universe."

     "Peter, a couple of corrections."

                               Alan Weisbard

The right to an abortion is in the Constitution by inference. That isn't enough for this Supreme Court.

Yesterday's post was about the Supreme Court contradicting itself, if its goal were the principle of letting democratically elected legislatures, not courts, decide issues that are essentially political. They say abortion should be up to legislators, but bearing guns is a constitutional right. Both are hot potato political issues. There is a distinction, though, between the issues. Firearms are mentioned by name in a strangely written Amendment, even if it is being construed so as to ignore the first half of it. Abortion isn't mentioned. 

Abortion rights needed to be discovered and inferred. Some would say they were invented.  My memory had been that they were a logical extension of the "right of privacy" which was another inferred right. The Court in 1965 struck down a Connecticut law prohibiting the use or sale of contraceptives to married couples. (Yes, that was the law then.) The Supreme Court inferred that surely the prohibition against unreasonable searches included what married couples privately did in bed together. Roe v. Wade took privacy to the next logical step, from condoms and birth control pills to abortion. 

I got a head's up email that the legal justifications for Roe v. Wade had evolved. I am delighted to be corrected and updated. The need for it documents the bigger point, that while Roe v. Wade is good, enlightened public policy in the eyes of many, abortion's Constitutional basis as a right, was not ironclad. Its basis needed finding, and where it was found evolved, to somewhere in the notion of women as a full and free humans. Thanks to that head's up, I located this article from the Center for Reproductive Rights, which fleshes out the evolving jurisprudence. Fact Sheet

The heads up came from Alan Jay Weisbard, another of my college classmates. He is a retired professor of law, bioethics, and Jewish studies at the University of Wisconsin. He held senior positions on bioethics commissions at the Presidential and state levels. He now lives in Bethesda, Maryland, close enough, he tells me, to "detect the stench of Supreme Court politics."

Guest Post by Alan Jay Weisbard

Peter, a couple of corrections.

First, in the current lingo of the Court, the abortion right is grounded in 14th amendment liberty interests, not in equal protection (although it should be that too). The original Roe decision talked about a right of privacy (following earlier decisions on contraception, which used that language). The origins of a right to privacy in a particular constitutional provision (or emanations from several provisions) was much debated and scoffed at by many, then and since. The right of privacy language was renamed as an autonomy interest, and that is now treated as a liberty interest.


Chief Justice Roberts is unlikely to be the swing vote, since there are five others ready to trim or overrule the Roe and Casey precedents. He may have some impact on the shape of the decision—as Chief, he can assign writing the decision to himself so long as he is in the majority.

My guess is that Roberts will favor discarding viability as the standard in favor of a lesser protected period, perhaps the 15 weeks in the Mississippi statute.

I should note that the viability standard established by Roe came out of the blue—it was apparently not briefed or argued, just announced by Justice Blackmun. I personally don’t think that viability per se makes much sense, but it comes at a reasonable point in the middle of pregnancy, allowing a decent amount of time for many or most women to make a choice. Those less familiar with pregnancy or in various forms of distress may have trouble getting things together in that time.

I don’t think there is any non-arbitrary standard to substitute for viability that falls at approximately that time in pregnancy, making for a decent balance of rights and interests of the pregnant woman and concerns of the state.

I presume that some provision for advanced pregnancies that threaten the life or health (however defined) of the pregnant woman will survive the decision, but there are likely to be few clinics or ob-gyns providing this service. I am not sure what will happen with serious fetal abnormalities that are discovered only late in pregnancy.