It is finally settled that Joseph Biden will become president of the United States on January 20 at about noon. His party, in its presidential platform, has promised to “codify the right to reproductive freedom.” At an October campaign event, Biden made the promise his own. Asked what he would do about abortion in light of Amy Coney Barrett’s nomination to the Supreme Court, Biden noted the “expectation” that Barrett would vote to overrule Roe. He then declared: “The only responsible response to that would be to pass legislation making Roe the law of the land. That’s what I would do.”
Democrats control the House of Representatives. As vice president, Kamala Harris will possess the tie-breaking vote in a Senate equally divided between the parties. In 2019, she co-sponsored the proposed Women’s Health Protection Act, which would have codified Roe. At least a couple of Republican senators (Susan Collins, Lisa Murkowski) are also reasonably likely to vote to “codify” Roe.
The question is not if but when Congress will consider a bill making abortion on demand up until the third trimester—and possibly throughout pregnancy—the law of the land. When that time comes, the bill will probably become law. It would mean that even if the Supreme Court overruled Roe v. Wade, abortion would be just as available the day after the decision as it was the day before.
Could it really end up making no difference whether the Supreme Court finally overturns Roe v. Wade? Unfortunately, yes—unless the Court’s conservatives alter what they mean by “reversing” Roe. This would require a significant change in their constitutionalism—more specifically, in their understanding of how moral truths intersect with their job of faithfully applying the Constitution.
As things now stand, when constitutional conservatives speak of “reversing” Roe, they mean getting the Court out of the abortion fray. They have long maintained that the Constitution is silent about abortion: Neither a woman’s right to legal abortion nor an unborn child’s right to life is to be found there. This means that, as Justice Scalia wrote in 1992 in Planned Parenthood v. Casey (for himself, for Justice Thomas, and for the two dissenters in Roe, White and Rehnquist), “[t]he states may, if they wish, permit abortion on demand. . . . But the Constitution does not require them to do so.”
Could Congress “require them to do so”? The first question posed by the Democrats’ plans to “codify” Roe is the first question about the constitutionality of any piece of federal legislation: What’s the basis in the Constitution for this exercise of federal power?
Any bill designed to “codify” Roe will rely upon the two congressional powers cited in the 2019 WHPA. One is Congress’s power under section five of the Fourteenth Amendment to “enforce, by appropriate legislation” the guarantees of (for example) due process and equal protection of the law to all persons. The Court in Roe attributed abortion rights chiefly to the due process clause. If the Supreme Court overrules Roe, though, Congress could not rest any “codification” upon enforcement of a constitutional right to abortion, as there would be none.
The WHPA indicated two other bases for congressional power. One is the Fourteenth Amendment’s guarantee (as it has been interpreted by the Court for a half-century) of equality between the sexes. The never-enacted WHPA stated that “[a]ccess to safe, legal abortion services is essential to women’s health and central to women’s ability to participate equally in the economic and social life of the United States.” And: “Abortion-specific restrictions single out health services used by women, and rely on and reinforce stereotypes about women’s roles, women’s decisionmaking, and women’s need for protection.”
The second asserted constitutional ground is Congress’s power over “interstate commerce.” In the WHPA, Congress concluded that state abortion restrictions “substantially affect interstate commerce in numerous ways.” Besides the fact that women's participation in interstate commerce obviously affects it, the supporting findings here included the claims that state restrictions on abortions cause interstate travel (by patients and providers alike); that abortion providers “engage in a form of economic and commercial activity when they provide abortion services, and there is an interstate market for abortion services”; and that these providers “engage in interstate commerce to purchase medicine, medical equipment, and other necessary goods and services,” as well as to “employ and obtain commercial services from doctors, nurses, and other personnel who engage in interstate commerce and travel across State lines.”
These findings and the conclusions they support have a distinguished pedigree. They are basically the same as those that saved Roe from reversal in 1992. Then, a plurality comprised of three Republican-appointed justices affirmed Roe because “for two decades of economic and social developments, [people] have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives.” It is as if the WHPA findings were lifted from the pages of Casey.
What was so compelling to the justices nearly two decades after Roe is likely to be so after nearly five. The Court has endorsed the relationship between women’s equality and their reproductive freedom as an adequate basis for federal laws about pregnancy non-discrimination and family medical leave. Levelling the playing field in the marketplace, so that women’s distinctive reproductive lives do not handicap them, is an accepted basis for the exercise of congressional power. It would be for a statute “codifying” Roe.
Any potential constitutional impediment to “codifying” Roe would thus have to be found elsewhere in the Constitution. In most situations, this would be a limit based upon individual rights. For instance, even conceding Congress the power to regulate interstate trucking, no regulation of long-haul drivers may include authority for an “unreasonable search or seizure,” because that would contravene the Fourth Amendment. Is there a limitation of this sort that would block “codification” of Roe? It could only be a recognition that, as a constitutional matter, the unborn child is a human person with rights. This might look like a no-brainer. Anyone who confronts the scientific facts about human reproduction free of biases and of rationalizations for abortion can confidently judge that life begins at conception. Besides, both state and federal law now treat the unborn child as a person with rights to be respected. If you want concrete evidence that this is so, just get in touch with any of the scores of men who are languishing in prison for killing their unborn child—such as Jessie Livell Phillips, the first American convicted of capital murder for the intentional killing of his unborn child, by an act that also killed his wife, Erica. In other words, the law in many states and in the federal system already recognizes the unborn child as a person with the same right not to be killed that you and I have, with this fatal exception: The unborn child’s mother may kill him or her with impunity, for any or no reason. Erica Phillips had a constitutional right to do exactly what Jessie Phillips is going to be executed for doing.
We can be certain that some members of the Supreme Court see the facts and appreciate the glaring anomaly of the Phillips case. Probably a majority of the justices recognize the truth that life begins at conception. Yet no member of the Court since Roe has written this in an opinion. None has voiced any disagreement with the Roe Court’s decision to treat the relevant constitutional term—“person,” in the Fourteenth Amendment’s guarantee of the “equal protection” of the laws, including those against being killed, to every “person”—as a legal term of art whose meaning has nothing to do with the truth of when people begin. All those who have served on the Court since 1973 concur in the view expressed by Harry Blackmun in Roe, that the judiciary is hardly in a position to answer the “difficult question of when life begins.” They would all concur with Justice Scalia’s statement from the 1990 Akron abortion case: The “question of when life begins” is “non-justiciable.” Pro-life conservative justices have been unwilling to hold that the constitutional command to protect every “person” includes every person because they think it is none of their business, that it is beyond their competence.
This abstention and the curious reasons for it extend to the conservatives’ whole approach to abortion questions. The most recent example is Chief Justice Roberts’s concurring opinion in last summer’s June Medical Services case. The issue there was the constitutionality of a Louisiana law requiring abortion doctors to have admitting privileges at a nearby hospital. Roberts argued that the task at hand was “in essence to weigh the State’s interests in ‘protecting the potentiality of human life' and the health of the woman, on the one hand, against the woman’s liberty interest in defining her ‘own concept of existence, of meaning, of the universe, and of the mystery of human life’ on the other.” Roberts asserted that there “is no plausible sense in which anyone, let alone this Court, could objectively assign weight to such imponderable values and no meaningful way to compare them if there were; [a]ttempting to do so would be like ‘judging whether a particular line is longer than a particular rock is heavy.’” The chief justice concluded that answering that question “would require us to act as legislators, not judges,” and would result in nothing other than an “unanalyzed exercise of judicial will” in the guise of a “neutral utilitarian calculus.”
Roberts’s position illustrates the conservatives’ characteristic aversion to the moral reasoning that they associate with abortion cases. This aversion is the basis for their judgment that constitutional questions pertaining to abortion are not susceptible of properly judicial answers. Call it a characteristic moral reticence.
Roberts’s opinion also illustrates how misbegotten that reticence is: Conservatives have paddled away from caricatures of the questions that faithfully rendering the Constitution’s norms about abortion actually present. And conservatives present an unjustly crabbed view of the moral matters that judges can, and regularly do, competently resolve.
It is true that we may have no idea how to think about the “potentiality of life” in comparison to the interests of pregnant women. But that is principally because we have no idea how to think about “potential life” at all, because there is no such thing. What Roberts could have said is that the living human individual within the womb is not (yet) a “person” whose well-being (and thus rights) others are bound to respect. One might even coin a term and say that the fetus is “pre-personal human life.” But this candor would fly in the face of the conservatives’ moral reticence, which blocks them from (as they describe it) deciding when “life” begins. It would raise awkward questions for them about how, and why, some living human individuals are “persons” and some are not.
Roberts’s opinion exemplifies how conservatives have taken on board Harry Blackmun’s neologism, “potential life.” It evidently appeals to conservatives because it seems to be a modest, non-committal concept that they may safely use without violating their self-imposed strictures against philosophizing. But it is a unicorn; there is no such thing as “potential life.” The Court’s conservatives must know that. But they probably see in “potential life” a way to describe the unborn as truthfully as they can, given what they hold to be the limits of their judicial competence.
Now, it is generally fine to affirm, as Roberts did, that one person’s health and another’s life are incommensurable goods, and that anyone’s liberty is different still. But doing so does not establish that any of these “values” is “imponderable.” Nor does any relevant incommensurability support Roberts’s assertions about “unanalyzed will” or “meaning[less]” deliberations. A “utilitarian calculus”—neutral or otherwise—is also out of the question. That is entailed by incommensurability: the absence of a common metric which makes values incommensurable makes them unsusceptible to the utilitarian calculations of univocal, overall net worth.
In general, the way to resolve questions about what to do when there are conflicting incommensurable values in play is to make a free choice. There is nothing mysterious or especially difficult in the exercise. Our legislatures and courts have from time out of mind been making precisely such choices. The Supreme Court does so as well. The justices routinely choose between individual privacy and security when they decide how far law enforcement may go in search and seizure cases. Our law has also long insisted on strict limiting conditions for using lethal force against another person. Basically, doing so is limited to situations where it is needed to avert an imminent danger of death or serious bodily injury to another person. This, too, is a paradigmatic social choice.
It is one thing, moreover, to say that a particular choice or set of choices is allocated by the Constitution to the legislature and not to the courts, or vice versa. That is basically what constitutions do. It is another thing entirely to punt all such choices ex ante to legislators because they are somehow intrinsically unjudicial. That is unwarranted. Courts make free choices all the time.
Even so: The chief justice was still wide of the mark in suggesting that this matter of “will”—that is, choice—is so wide open and arbitrary. No one’s choices are so “free” as to be excused from complying with all relevant moral norms. No chooser is free to ignore the moral duty to treat everyone foreseeably affected by one’s choices fairly, or to choose to intentionally harm another person, or to betray one’s own prior commitments. Only within a framework bounded by, and respectful of, moral constraints such as these does the “freedom” of the chooser begin to operate. In the abstract, I might be “free” to choose between taking a needed vacation or staying in town to care for my elderly neighbor. Rest is, after all, good for the body and soul; it is indeed, in the abstract, incommensurable with attending to another’s needs. But if I promised last week to take care of my neighbor, or if my neighbor’s need arose from my negligently leaving a roller skate in his or her path, I am no longer morally free to skip town. In general, I could rightly say that I have a free choice about the value of my neighbor’s health in relation to my rest. In particular, though, I have an obligation to choose the former over the latter.
Roberts’s appeal to incommensurability in June Medical makes the mistake of treating a pregnant woman’s options only in the abstract or, more precisely, as a matter of the comparability of different goods abstracted from any particular choice. He might have felt obliged to describe the phenomenon in neutral terms. Or maybe he thought it would be useful to do so. But there is no need and the usefulness of it is dubious. Choosing abortion is in truth morally wrong. Nothing in the Constitution or even in Roe v. Wade calls for such “neutrality.” The case law makes clear that women must have unburdened access to abortion, but the cases do not require that this access be valorized or anything more than tolerated. In fact, the Supreme Court held as long ago as the late 1970s that public authorities, including judges, may make policy on the basis that childbirth is morally preferable to abortion.
Besides, no pregnant woman makes the decision to abort “in the abstract.” She has in almost every case previously chosen to engage in an act which she knows or should know could result in a new life within her. (Rape is the obvious exception.) As a matter of fact, the pregnant woman is in the unique position of being needed in order for that new life to survive. This brute fact entails certain moral responsibilities. She is under the same moral obligation as everyone never to intentionally kill anyone else, and to never do anything that unfairly—that is, unjustifiably—causes another person to die. Consistently with the sound notions of fairness, justice, and obligation that are applied elsewhere in our law and social life, both she and we can “measure” her options by those standards. There is no relevant incommensurability once one has moved from the abstract values to the values as they are at stake in the actual situation and proposed actions of the parties involved.
Conservatives could in any event avoid the fiction of “potential life” and all the illusory “willful[ness]” involved in abortion regulations by affirming two propositions. One is that when the drafters and ratifiers of the Fourteenth Amendment vouchsafed “equal protection” of the laws against killing to every “person,” they meant every person. The second is that any person’s life in fact begins at conception.
The first matter is strictly historical. It is the sort of inquiry the Court has conducted in countless constitutional cases. The second is a philosophical conclusion based upon scientific evidence. It is like the inquiries that courts and even juries carry out every day, when they deem a criminal defendant “insane” based upon expert testimony, or declare that someone is “dead” according to some critical criteria applied to the facts about a particular (putative) corpse. One difference between “insanity” and “death,” on the one hand, and when life begins, on the other, is that in the former cases the scientific evidence is often hotly disputed. The biological and other scientific facts about human reproduction are not.
Neither the Court nor its specifically conservative members has ever offered a reason for refusing to consider the mountain of evidence showing that those who enacted the Fourteenth Amendment meant to make the term “person” transparent for the truth of the matter. One possible reason is that doing so would lead straightaway to having to affirm the second proposition which is, by their lights, none of their business.
If the Court were to recognize the unborn as the persons they are, then all the problems Roberts catalogued would disappear. For when the unborn are counted as “persons” equal to others, the universally applicable legal norms about justification and excuse would pertain to them too. In a certain sense, it would be business as usual; abortion would scarcely be a special case at all.
Finally, adding Roberts’s assertions about the intrinsically legislative character of abortion regulations to the claim that personhood is “non-justiciable” leads to a most unappealing sum. All that these claims could possibly establish is that courts are not equipped to answer certain constitutional questions about killing the unborn; these matters are above (or below, depending on one’s point of view, I suppose) the judicial paygrade. These claims establish nothing about the true meaning of the Constitution. They do not show that the Constitution is silent about abortion. They report only that judges have obliged themselves to be mute on the subject.
The obvious candidate to fill out the judicially unavailable constitutional law about abortion would be the body explicitly authorized by the Fourteenth Amendment to enforce it—Congress. Section five is one of the two express references in that amendment to the power of Congress to make its provisions work. (The Court’s power to enforce the amendment is implicit or presupposed.) The leading effect of constitutional conservatism is, tragically, to make certain that if the new Democratic Congress “codifies” Roe, the Supreme Court will have rendered itself helpless to resist it.
Gerard V. Bradley is professor of law at the University of Notre Dame.
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