Abortion: Dissecting a Right Without a Foundation

Many Americans have at least a vague idea that the right to abortion rests on a shaky constitutional foundation. Just how shaky was well discussed at a recent Faith and Law presentation on March 18. Bill Saunders of the Institute for Human Ecology, and Helen Alvare of George Mason University’s Antonin Scalia Law School well explained why there is no reasonable basis.   

Alvare said of pro-life advocates “we get caricatured as sort of idiots.” But “there just is no right to abortion in the Constitution.” Abortion is defended as a constitutional right on the basis of the Fourteenth Amendment, and its due process and equal protection provisions. The Supreme Court is now being urged to use equal protection to defend abortion, if due process is judged inadequate.

But the original and still controlling basis of the right to abortion is due process, using what is known as “substantive due process” doctrine. Originally, due process was understood to mean that correct legal process must be followed before a person can be deprived of “life, liberty, or property.” However, it later was interpreted to mean that the purpose of laws must be fair. This implies rights not specifically mentioned in the Constitution. “Parental rights” to determine a child’s education was recognized in the Pierce vs. Society of Sisters (1925). Roe vs. Wade (1973) identified abortion as a “due process” right. The problem, however, was that legal doctrine at the time required “a lengthy history and tradition” to support unmentioned rights. There was no such history and tradition recognizing a right to abortion. Thus Roe vs. Wade was legally a poor decision. The Planned Parenthood vs. Casey decision (1992) advanced “equal protection” as a possible ground for abortion. It was proposed by Associate Justice Sandra Day O’Connor that women were disadvanged if they were denied abortions. Equal opportunity in the world of work, for instance, could be impeded by unwanted childbearing.

None of these arguments are supportable. Alvare noted that the court has found it difficult to settle on any legally persuasive defense of the right to abortion, and has tried very different unpersuasive arguments. The test for a right not explicitly found in the Constitution which is “most respectful of democracy” is that it must be clearly defined and “deeply rooted in our legislative history and tradition and practices.” This test has been re-affirmed by the Supreme Court many times, she said. 

However, there are less persuasive and really more arbitrary arguments, such as were used in the homosexuality decisions of recent years. Lawrence vs. Texas (2003) voiding sodomy laws, appealed to the opinion of the European Court of Human Rights and current public opinion. The same-sex marriage decision, Obergefell vs. Hodges (2015) could not even use these tests, since they did not support the desired conclusion, and looked instead to the “reasoned judgment” of the majority of the court. These criteria are so arbitrary as to be hardly worth mention. Alvare turned to the “history and tradition” test.

She said that from “the origins of the country, unborn human lives have been protected, since medical science could determine they were alive.” A standard of “quickening” was used, meaning that the unborn child was protected from the time it began to move. This did not mean, Alvare said, that the law denied life before this time, but in court, evidence was needed to show that it was alive. In the nineteenth century, medical science discovered reproductive cells and the event of fertilization, and human life was held to exist from that point. This then became the new legal standard. The American Medical Association supported it in 1859. The AMA “dismissed the fiction that human life was not alive until quickening.” She noted that when the Fourteenth Amendment (with the due process clause) was ratified in 1868, 30 of 37 states had enacted “common law protections for unborn life.” She said that “all but three” states had protection from the moment of conception. By 1886, “every single state and territory protected human life, almost all from conception.”   

Against this, the Roe vs. Wade decision had “no factual findings at trial.” The historical evidence of the decision was taken from the amicus brief of an abortion supporter, Cyril Means. He claimed that laws had only protected human life from quickening “because nobody actually thought there was any human life before then.” He maintained that danger to the mother’s health was the reason for laws prohibiting abortion. He ignored that laws were changed at the time of the passage of the Fourteenth Amendment to protect life from conception. Also ignored was the fact that abortion remained illegal “in every state for almost all reasons” even when antibiotics were invented in the 1940s. He “also ignored 60 decisions in the supreme courts of 42 states that named the protection of human life before birth as the leading reason” for laws prohibiting abortion.

Since the Roe vs. Wade decision, “several hundred” pro-life bills are introduced in legislatures every year. One thousand three hundred and twenty-one pro-life laws have actually been passed. The European Court of Human Rights has also ruled that member nations need not make abortion legal. “Recent trends” she said “are pretty pro-life … Everything about history and tradition is on the side of a country that does not favor widespread abortion.”

Besides the due process argument, which is generally recognized as “a joke,” an “equal protection” argument is advanced. While the court has not made equal protection the basis for abortion, justices favoring abortion have begun entertaining it in their comments in court decisions. Alvare said the only evidence cited for this legal basis was literature by two pro-abortion authors who maintained that women’s improved position in society better enabled them to secure abortions. But this does not show that abortion led to an improved social condition for women. Alvare said that the National Institutes of Health (incredibly) reported no studies on the effect of abortion on women’s trajectory in life, but there are many such studies overseas. These are “record linkage studies” that survey the trajectory of women’s lives from birth to death, and the effect of abortion on their lives. These studies “indicate problems.”

Although the Supreme Court justified abortion as vital to the well-being of women, recent social history points in the opposite direction. American society has moved toward sexual egalitarianism by many measures as abortion rates have “plummeted” (by 50%) since 1990. These include 70% percent more women in the workforce with college degrees, 15% increase in earnings relative men, 114% increase in women owned businesses, and 41% increase in women in state government. She said that “legal abortion advocacy” is really based on “public and private actors’ inclination to refuse the expensive and complex strategy of accepting women into society with their children, and with their desire to care for their children.” She cited Secretary of the Treasury Janice Yellen to say that “the U.S. lagged behind all advanced economies in providing support for women and parenting.” Alvare believes that “abortion has been the get-out-of-jail free card” for those who don’t want to provide support for women working outside the home with children.

Saunders then discussed how the attempt to justify abortion with the “liberty” justification of the Fourteenth Amendment is a threat to democracy. It makes the court’s opinion of what is necessary for a meaningful life (which Justice Anthony Kennedy decreed to be the right to define oneself and the universe) a constitutional standard. This overrides all other opinions in society, including majority opinion and that of other informed commentators. This formula allows the court to find in the Constitution what it wants to find. When courts arrogate to themselves this power, they take away the power of legislatures and the people. The Supreme Court in essence gave itself the power to amend the Constitution with its own evolving standards of “dignity, meaning, life, happiness.” This is a power not granted to the court in the Constitution.

If, on the other hand, Roe vs. Wade is overturned, this will not ban abortion nationally, but simply mean states may take what action they believe is right on abortion. Saunders expects that Mississippi’s 15 week ban at issue in the Dobbs vs. Jackson Women’s Health Organization case will be upheld, and his “best guess” is that Roe vs. Wade will also be overturned in principle as well, ending the constitutional right to abortion the court decreed.

How should people respond to the claim that abortion is “an international human right?” This is simply false. There are only two types of international law. “One is in a treaty, and one is by custom.” Most binding international rules are in treaties between particular states. They are written, and definite in their provisions. Saunders said that “there’s very few customs that are universally agreed upon.” A customary right to abortion would “have to show unanimity.” He noted in particular the “Geneva Consensus Declaration” that the U.S. government entered into with 30 other countries during the Trump Administration. This declaration said that there is no right to abortion. Additionally, “most nations of the world are much more restrictive on abortion than the United States.” Saunders said that even if we thought it is “legitimate to look at what the rest of the world is doing, the rest of the world is more restrictive, much more, than we are.” Many countries begin restricting abortion “strongly” at 12 weeks. By contrast, the Mississippi law cuts off abortion at 15 weeks. While the lack of a persuasive basis hasn’t stopped the court in the past – Justice Kennedy essentially appealed to what he thought was enlightened opinion in decreeing constitutional standards, this writer would add – the current more conservative court may find the courage to make the correct legal judgment that abortion has no basis in the Constitution or international law. However, because overturning Roe would return abortion law to legislatures, Saunders warned the Faith & Law listeners that if Roe is overturned “you’re going to be very busy staff people and citizens after that.”

A questioner asked what could be done to reduce the number of abortions to zero if the Supreme Court ends the constitutional right to abortion it decreed. Alvare said that much in a post-Roe world will depend on action at the state level. Substantial legislative failure by the pro-life movement will “be horrific,” she said. In some states, there will be efforts to write abortion into state constitutions. In other states there will be a need for efforts to prohibit or restrict abortion. Crisis pregnancy counseling will be crucial, with the understanding that the situation of the child coming into the world begins at conception. The child should have two parents ready to play their roles when a child is conceived. This will involve much more sexual responsibility than has been practiced in the recent past. Neither contraception nor crisis pregnancy centers have successfully dealt with the problem of unwanted pregnancies, she said. The real question is achieving the “cultural change” that is needed for people to be “sexually responsible.” Sometimes unmarried parents do marry, although this is not as common as in the past, and their marriages tend not “to last quite as long.” She said that the most boring chapter in her recent book Putting Children’s Interests First in US Family Law and Policy, was the one listing all the government programs to help children who do not have two parents able to raise them. The focus in both churches and state law and policies should put children first, not adult satisfaction, People should be helped to think “about the child as part of an adult relationship from the beginning.”

Saunders said that “the basic teaching from Aristotle is that ‘the law is a teacher.’” He does not agree with the recent maxim, common among social conservatives, that “law is downstream from culture.” Law and culture “reinforce and they influence one another … laws need to be appropriate and just, and that will help influence the culture.” But “ultimately, people’s hearts have to be changed.” While pro-lifers may be discouraged by “super-politicized” exchanges with abortion advocates, just stating facts, such as the fact that most states had strong pro-life legislation at the time of the passage of the Fourteenth Amendment, will be helpful.

Another questioner asked to what extent a reversal of Roe would lead to a shift in law and jurisprudence from valorizing the sexual activity of adults toward a concern for children. Alvare said that a fierce reaction can be expected to overturning Roe, but that a key here would be “reminding people of the child’s existence.” Good policy can then be enacted by state legislatures empowered once again to make decisions about abortion. We can express the hope for reasoned conversation about abortion. Pro-abortion advocates can be expected, as they do today, to insist that freedom and equality for women demands abortion (although if “men” and “women” are defined to include members of opposite sex, the logic of this argument fails). But without a court mandated right to abortion, it will be much easier to insist that children be considered. She said that while pro-life advocates can concede that a woman may be “struggling with the pregnancy,” nevertheless, “there is just simply no doubt in any embryological textbook … that we’re grappling with human life. Can we just be intelligent about this?”

Another questioner asked how Christians should engage other Christians who publicly support the right to abortion. Alvare said that we should talk to them privately and explain how “cataclysmic” it is for a Christian worldview to advocate for a right to abortion. It clearly violates the principle of “love God and one another” to support “the violent abuse of the human person who God has made.”

Another questioner pointed to the concern that overturning Roe would impact the Supreme Court’s jurisprudence supporting the sexual revolution (e.g., contraception and homosexuality). Alvare said the substantive due process basis of both abortion and the court’s sexual decisions is very shaky, but doubts that the court has “the stomach to overturn Obergefell” (or presumably its other radical decisions on homosexuality). But “fifty some years of unrest” on abortion have given it the stomach to overturn Roe. Saunders said that the Dobbs case deals only with abortion, and a constitutionally correct decision on abortion is separate from other issues, which would have to be decided on their own merits. But concerning the claimed rights to abortion and same-sex sexual activity and marriage “two wrongs don’t make a right.” He said that “it’s a very weak argument” to say that ‘we lose X if we remedy this great injustice of abortion … It’s not an argument made by somebody who’s life is on the line … the unborn can’t speak and their lives are taken, so do you believe that American democracy is founded on a principle where innocent people can be killed because it’s convenient for other people? … no argument has been made … that it’s in the history of the country.”

This writer would point to the obvious – that Roe vs. Wade would have been overturned long ago, but for the court’s reluctance to face the wrath of “enlightened opinion.” Perhaps the greatest danger in the coming decision is that the Mississippi law will be upheld, while retaining a skeletal constitutional right to abortion. Grave errors must be corrected, or there will be grave consequences. At the heart of the court’s errors has been its judgment that the Constitution is prescribing some kind of good life, and that this good life involves what has historically been understood to be sinful and evil. The constitutional right to abortion (in itself horrific) has led to the increasing respectability of infanticide, just as the constitutional right to homosexuality led to people claiming to be members of the opposite sex, the sexual mutilation of minors, and the fantastic claim that this is the only decent and rational way to think. The justices of the Supreme Court are charged with holding the nation to the provisions of the Constitution, regardless of what people may say about them. We should pray fervently and frequently that they will do the right thing and overturn the Roe and Casey decisions, and take away the great evil the court has for so long imposed on the country.