by David Balashinsky
After close to half a century of having a constitutionally-recognized right to obtain an abortion, American women* have now had that right taken away. The Supreme Court of the United States, packed with anti-abortion ideologues, at least three of whom were placed there expressly for the purpose of overturning Roe v. Wade (and, arguably, a majority of them having been seated illegitimately) has now deprived American girls and women of a fundamental right that they have had for almost fifty years. This has never before happened in our nation's history or in the history of Supreme Court decisions. There have been major reversals of Supreme Court precedents before, as more enlightened versions of the Court have fulfilled their duty to undo the damage done by previous conservative ones. But these other precedent-reversing decisions have always expanded liberty, not restricted it. This is the first time that a long-established and deeply-embedded right has been taken away by the Supreme Court. This is a right that a majority of women around the world (and an increasing majority, at that) currently possesses. Not here. Not any more. In a nation "conceived in liberty," a nation that prides itself on being a beacon of freedom and democracy to the rest of the world, the basic question before the Supreme Court in Dobbs versus Jackson Women's Health Organization boiled down to this: Does the Constitution guarantee women the right to own their own bodies? In answer to that question, the Court has delivered a blunt "No."
Abortion constitutes an ultimately irreconcilable moral, ethical and legal conflict between competing claims for an absolute right. The claim made by abortion-rights opponents on behalf of the fetus (or zygote or embryo) is for the absolute right to life of the fetus. But this right can only come at the expense of the right to bodily self-ownership of the girl or woman in whose body the fetus is gestating. At the same time, the claim made by abortion-rights supporters is for the absolute right of bodily self-ownership of girls and women of child-bearing age. In the case of abortion, this right can only come at the expense of the right to life of the fetus.
The majority in Roe v. Wade, which, along with Planned Parenthood of Southeast Pennsylvania v. Casey, Dobbs now overrules, did not base its decision explicitly on a right of "bodily self-ownership" but on the right to privacy (which would seem to treat bodily self-ownership as a foregone conclusion):
The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford . . . (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia . . . (1969); in the Fourth and Fifth Amendments, Terry v. Ohio . . . (1968), Katz v. United States . . . (1967), Boyd v. United States . . . (1886), see Olmstead v. United States . . . (1928) . . . ; in the penumbras of the Bill of Rights, Griswold v. Connecticut . . . ; in the Ninth Amendment . . . ; or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska . . . (1923). These decisions make it clear that only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty," Palko v. Connecticut . . . (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia . . . (1967); procreation, Skinner v. Oklahoma . . . (1942); contraception, Eisenstadt v. Baird . . . ; family relationships, Prince v. Massachusetts . . . (1944); and child rearing and education, Pierce v. Society of Sisters . . . (1925), Meyer v. Nebraska, supra.
This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. . . .
Significantly, the majority in Roe did not regard the right to privacy (and, presumably, the right to bodily self-ownership) as absolute and therefore sought a middle ground between the right of a woman to terminate her pregnancy and what it regarded as a legitimate state interest in "promoting . . . the potentiality of human life." Roe thus incorporated a scheme in which pregnancy was divided into three trimesters:
For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician. . . .
For the stage subsequent to approximately the end end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it so chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. . . .
For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. . . .
This is not a radical decision. Say what you will about its legal reasoning, Roe provided a pragmatic and eminently workable solution to the conundrum posed by the fundamentally irreconcilable claims of those on opposite sides of the abortion debate. Moreover, the more-or-less equitable compromise of Roe is reflected in the widely prevailing beliefs and attitudes of a majority of the American people.
For my part, Roe did not go far enough. For one thing, I have always been bothered by the idea that "the abortion decision . . . must be left to the medical judgment of the pregnant woman's attending physician." It should be left to the girl or woman herself and to no one else.
Likewise, while I appreciate Roe's conclusion that the "Fourteenth Amendment's concept of personal liberty and restrictions upon state action . . . is broad enough to encompass a woman's decision whether or not to terminate her pregnancy," I am also bothered by the fact that the majority pointedly rejected the idea that the right to privacy is absolute as is, by implication, the right to bodily self-ownership:
. . . [A]ppellant and some amici argue that the woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant's arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman's sole determination, are unpersuasive. . . . [A] State may properly assert important interests in safeguarding health in maintaining medical standards and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one's body as one pleases bears a close relationship to the right of privacy previously articulated in the Court's decisions. The Court has refused to recognize an unlimited right of the kind in the past.
If the right to privacy as established under the Fourteenth Amendment is not, in fact, absolute, that is why the decision in Roe should have been predicated, instead, on the Thirteenth Amendment, the amendment outlawing slavery and involuntary servitude. Any statute that prohibits abortion - especially without exception and during the pre-viability period - denies women ownership of their own bodies and, thereby, relegates pregnant women to the level of chattel. It reduces them to living, breathing state-controlled incubators. As for involuntary servitude, what are forced pregnancy and childbirth if not that?
The question is, if pregnant women do not own their own bodies, as Dobbs has determined, who does? Prior to the enactment of S.B.8 in Texas, presumably, abortion bans rested on the premise that women's bodies, once they become pregnant, become the property of the State. However, since Texas, in banning most abortions, has cleverly taken the State out of its enforcement mechanism, the bodies of pregnant women should more properly be understood to be the collective property of all other citizens. (So much for conservatives' professed hostility to socialism.)
My own view is that the ethics of abortion start from the premise that every woman has an absolute right of ownership and control of her body and this right outweighs all other competing or conflicting rights. It follows, therefore, that the right of ownership and control of one's own body includes the right to terminate a pregnancy.
This is not to suggest that the ethics of abortion (as opposed to laws restricting it) should not involve weighing factors such as the the timing and the reason for an abortion. There are abortions that I regard as not just ethically unacceptable but morally repellent. An example would be an abortion performed solely for sex-selection; another would be an abortion imposed upon a woman without her consent. This last example is as much a violation of bodily autonomy as denying a woman her right to an abortion would be. But, leaving this example aside, I can certainly imagine other cases of abortion that I would regard as unethical. Yet the conviction with which I hold my own ethical views does not entitle me to impose them on another person to the extent of usurping her ownership of her own body. An ethical precept may be compelling; it can and ought to carry a great deal of weight. But it cannot outweigh a right. Those who oppose abortion on ethical (or religious grounds) are free to use moral suasion (as opposed to coercion) to encourage women not to terminate their pregnancies. What they should not be free to do - whether acting as individuals or in concert through state mechanisms - is prevent women from exercising their fundamental right to terminate their pregnancies. That holds in every case across the spectrum of abortions, from those abortions that are ethically unambiguous (for example, to save the life of the woman carrying the fetus), to abortions in which the explicit reasons may be regarded (by those who would support abortion in more compelling cases) as insufficient to justify abortion, to those abortions that may be regarded as unambiguously morally repugnant. Even moral repugnance is not a sufficient justification for denying a woman her fundamental right of bodily self-ownership.
The essential holding of the current Supreme Court majority in Dobbs is that, because abortion is not mentioned by name, a right to have one does not exist under the Constitution. There are, of course innumerable things that are not mentioned in the Constitution but their omission does not imply that they can be proscribed. That is particularly true of rights. Indeed, the Ninth Amendment specifically states that "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." It was partly on the basis of this amendment that the majority in Roe recognized the right to abortion. But, as noted above, the decision in Roe was based even more substantially on the right of privacy implicit in the Fourteenth Amendment.
The Dobbs decision offers numerous specific justifications for its overruling of Roe and for its blanket condemnation of Roe as "egregiously wrong from the start." But does anybody really believe that the majority in Dobbs consists of impartial jurists who are as neutral on abortion as they assert the Constitution is? I'm no constitutional scholar but it seems to me that if a jurist is appointed to the Supreme Court explicitly for the purpose of overturning Roe, as Gorsuch, Kavanaugh and Barrett all were, or if a jurist with a long history of hostility to Roe sets out to overrule it, as Alito did, it should not be too difficult for him to selectively quote case law and cherry-pick history in order to rationalize the desired legal outcome.
It's also remarkable that the majority, in attempting to justify its overruling of Roe (and Casey) argues that
what sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decision acknowledged: Abortion destroys what those decisions call "potential life" and what the law at issue in this case regards as the life of an "unborn human being."
In other words, the right to an abortion is unlike any other because the exercise of that right results in the death of another person or potential person, depending upon one's view of fetal life. And, yet, one day prior to issuing its ruling in Dobbs, the same majority on the Court had no compunction about striking down a New York law that restricted the right to carry a gun in public. Evidently, unlike abortion, guns are not implicated at all in the destruction of human life.
Dobbs will forever be recognized as one of the most transparently ideological, perverse and antidemocratic Supreme Court decisions in our nation's history - perhaps in any nation's history. I can think of only one other that equals it in its wholesale diminution of the status of an entire class of persons to the level of legal subservience: the Dred Scott decision. Dred Scott v. Sandford was the 1857 decision written by chief justice Roger B. Taney which held that Black people, even those born in the United States but whose ancestors had been enslaved and brought to the United States as enslaved people, could not be citizens of the United States. Taney ruled, additionally, that enslaved Black people were, legally-speaking, property and, therefore, that any law that deprived slave-owners of their human property was, under the Fifth Amendment, unconstitutional.
There is another Supreme Court decision that at least approaches Dred Scott and Dobbs in its broad denial of fundamental rights to an entire class of persons: the Bowers v. Hardwick decision of 1986. This was the decision that confirmed that states may ban certain private sexual acts between consenting male adults. Although, as written, the statute being challenged banned oral and anal sex between anyone, regardless of sex or sexual orientation, the Bowers case concerned the prosecution of two gay men. Accordingly, the question as framed in the majority's decision was whether the
Constitution guaranteed a right to engage in "homosexual sodomy" and the Court ruled that it did not. Bowers was regarded as a sweeping repudiation of the right of gay men to engage in sexual relationships. When the ruling was issued, attorney and former director of the Lambda Legal Education and Defense Fund, Tom Stoddard, famously said, "Twenty-five years from now this will be viewed as the Dred Scott case of the gay rights movement." (Bowers was reversed seventeen years later by Lawrence v. Texas.)
I do not think we will need to wait twenty-five years to view Dobbs as the Dred Scott case not just of women's reproductive rights but of their status as formerly free and equal citizens and as human beings. Just as Dred Scott relegated Black people to the legal status of non-citizens and property, the Dobbs ruling has now established under the Constitution the prerogative of every state legislature to reduce the legal status of pregnant women to that of less-than-autonomous citizens who may legally be deprived of their right to ownership and control of their own bodies and reproductive lives. It's hard to put a word to the subservient legal status to which this Court has now given the states carte blanche to reduce women but it's not an exaggeration to say that women in states that ban abortion may now be regarded as not fully persons. Indeed, as Michelle Goldberg reminds us, Ellen Willis expressed it perfectly decades ago when she observed that "the central question in the abortion debate is not whether a fetus is a person but whether a woman is." In answer to the second part of that question, the Supreme Court has also now delivered a blunt "No."
Dred Scott was never overruled by a subsequent Supreme Court. It took the Civil War and ratification of the Thirteenth and Fourteenth Amendments to undo it. In fact, the Dred Scott decision is widely recognized as one of the precipitating factors that led ultimately to the Civil War itself. Will the Dobbs decision prove to be just as destructive? Undoubtedly. Will it ultimately lead, as the Dred Scott decision ended up doing, to a major social and political upheaval and to a fundamental reordering of our political and legal systems so that the right of women to own and control their own bodies is universally recognized, codified, treated as inviolable and placed, once and for all, beyond the reach of those who would abridge or deny it? That, dear Reader, is up to you.
* While I acknowledge the fact that there are people capable of becoming pregnant who identify as men, I have consciously chosen to limit the use of sex-identifying words in this essay to "girls" and "women." In part, this is an editorial choice for simplicity. However, in the broad context of the historical struggle for women's equality and in the specific context of the struggle for women's reproductive rights, I also believe that taking the focus off of women - as historically understood to comprise the female half of a sexually dimorphic species - in the present case would be a disservice to them and to those struggles. After all, as Michelle Goldberg reminds us, "a core feminist insight [is] that women are oppressed on the basis of their reproductive capacity." It follows, therefore, that laws and policies that restrict access to abortion oppress women as women and not simply as people who happen to be capable of being pregnant. In other words, when women are deprived of their reproductive rights it is not in spite of the fact that they are women but because of it. Thus, to fail to identify women by name as a distinct class with a history of oppression in a discussion of abortion rights would be to negate the entire premise of that discussion.
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