April 19, 2007
Who’s a Strict Constructionist? Posted by Joshua Zeitz at 11:15 AM EST Anyone who was surprised by yesterday’s Supreme Court ruling upholding a federal ban on intact dilation and extraction abortions probably wasn’t paying close enough attention to judicial politics. Seven years ago the Court struck down a similar state law by a 5 to 4 vote. The majority in that case comprised John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer, David Souter, and Sandra Day O’Connor. O’Connor’s retirement, and her replacement by the conservative jurist Samuel Alito, all but guaranteed a reversal. This is not the first time that the Court has backtracked from its landmark decision in Roe v. Wade (1973), which barred states from interfering with abortion rights during the first trimester and placed sharp restrictions on their ability to impinge upon women’s reproductive rights before the point of fetal viability. (Roe placed fetal viability at somewhere between six and seven months, thus granting state legislatures some leeway to regulate abortion after the twelfth week.) What’s particularly interesting about yesterday’s decision—alarming to some, heartening to others—is that it places considerable emphasis on what Justice Anthony Kennedy called “ethical and moral concerns.” Namely, the decision readjusts the scales in a way that gives more weight to the state’s interest in protecting the unborn fetus, and less weight to an individual woman’s right to privacy. Roe v. Wade essentially found that a fetus had no constitutional rights until the point of viability. It allowed the states to regulate access to abortion after the first trimester, but until the point of viability, such regulations were permissible only if they were intended to protect the health of the prospective mother. By contrast, yesterday’s decision finds compelling cause for state interference with abortion rights as early as the fourth month of pregnancy, on the grounds of protecting the fetus. This is an altogether new precedent. The Court’s original ruling in Roe v. Wade has withstood considerable criticism over the years, from both the left (Ruth Bader Ginsburg, in her pre-Court days) and the right (Robert Bork). Months after the decision was issued, John Hart Ely, a law professor who had clerked for former Chief Justice Earl Warren, blasted the decision as “bad constitutional law.” In an influential journal article entitled “The Wages of Crying Wolf: A Comment on Roe v. Wade,” Ely developed an argument he had advanced privately with Warren in 1965, when the Court was deciding the case of Griswold v. Connecticut. The Court’s decision in Griswold v. Connecticut, which formed much of the legal precedent for Roe, struck down parts of a Connecticut statute that prevented married people from purchasing birth control products on grounds that the statute violated citizens’ “right to privacy.” Writing for the majority, Justice William Douglas found that while the Constitution included no specific mention of privacy rights, per se, “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. . . . Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment, in its prohibition against the quartering of soldiers ‘in any house’ in time of peace without the consent of the owner, is another facet of that privacy. The Fourth Amendment explicitly affirms the ‘right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’ The Fifth Amendment, in its Self-Incrimination Clause, enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment.” Douglas ruled that the shadows cast by these provisions shielded citizens against unwarranted state intrusion. Though Griswold is popularly considered a prime example of the Warren Court’s propensity to play fast and loose with the Constitution, in fact the Chief Justice shared the concerns of his clerk, who believed that Douglas’s “penumbra” argument was weak. In fairness to Douglas, the privacy argument that he enshrined in law in 1965 was hardly a new one. As early as 1888, when Thomas Cooley famously argued for a Constitutional “right to be let alone,” legal scholars argued that the Constitution safeguarded certain zones of privacy, and this idea was included in several important decisions and dissents at both the state and federal levels. But Ely’s criticism of Roe proved trenchant. Generations of law students have absorbed its central argument that the “privacy rights” maintained in Griswold and Roe are somehow made-up. To believe that these decisions were poorly framed is not necessarily to disagree with their outcome. Ruth Bader Ginsburg has criticized Roe but is clearly a proponent of abortion rights, while Robert Bork, who has decried both decisions, considered Connecticut’s ban on birth control an “outrage.” Were he a state legislator in Hartford, Bork said, “I would vote against that statute instantly.” Writing of Griswold, Bork argued that the right to privacy “does not have any rooting in the Constitution” and “comes out of nowhere.” This argument has proved compelling to many self-styled strict constructionists, who claim that if the Constitution doesn’t specifically mention the right to privacy—and if it doesn’t explicitly identify abortion as falling under that right—then no such right exists. The problem with this argument is that it doesn’t square with the Ninth Amendment, which affirms that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” In other words, the Bill of Rights lists some but not all of the rights retained by the people. Douglas’s majority decision in Griswold found that the institution of marriage long-preceded the Constitution, and as such, the right of married people to govern their own sex lives and procreative strategies was one of the ancient common-law rights guaranteed by the Ninth Amendment. Writing for the majority in Roe, Justice Harry Blackmun also located the right to privacy in the Ninth Amendment. Former counsel for the Mayo Clinic in Rochester, Minnesota, Blackmun became well-versed in the medical history of abortion. As he explained in his majority decision, “it perhaps is not generally appreciated that the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage. Those laws, generally proscribing abortion or its attempt at any time during pregnancy except when necessary to preserve the pregnant woman’s life, are not of ancient or even of common law origin. Instead, they derive from statutory changes effected, for the most part, in the latter half of the 19th century.” In 1787, when the Constitution was drafted, as a matter of “common law, abortion performed before ‘quickening’—the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy—was not an indictable offense.” When states began restricting the right to abortion, in the mid-nineteenth century, they usually did so with the express purpose of safeguarding the health and safety of the mother. This made some sense, given the dangers associated with abortion in the era before modern medicine. But subsequent improvements in the medical sciences rendered abortion a safe procedure and thus undermined the rationale for these nineteenth-century restrictions. “Strict constructionists” like to argue for a literal reading of the Constitution. If a certain right is not embedded in its text, it doesn’t exist. But as Douglas and Blackmun demonstrated, citizens enjoyed a host of common-law privacy rights prior to—and at the time of—the Constitution’s enactment, and these rights fall under the rubric of those “rights . . . retained by the people” protected by the Ninth Amendment. If “strict constructionists” don’t like abortion, the onus is on them to amend the Constitution and remove a right that was guaranteed to women at the time of its original drafting. Pro-life activists might respond to this argument by noting that we know more about fetal development today than did the Founding Fathers in 1787. This is true, and undoubtedly many Americans sincerely agree with Justice Kennedy that abortion poses “ethical and moral concerns.” But as Robert Bork once argued, “We have to accept that there’s a difference between laws that embody bad policy and laws that a state legislature lacks the power to enact. A law can be bad—like the Connecticut law in Griswold—without being unconstitutional.” By the same logic, a law can be immoral without being unconstitutional. Since 1973, the pro-life movement has cloaked itself in the “strict-constructionist” argument. The pro-choice movement would do well to deconstruct this syllogism. Whether abortion is good or bad, it was a common-law right in 1787, and as such, it is protected by the Constitution.
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