Amongst the endless list of hopelessly polarizing issues that divide the country today, abortion is at the very top. The topic has reached a new fever pitch with Supreme Court Justice Kennedy’s impending retirement. He was the so-called “swing” vote on the court when it comes to reproductive rights, having sided with progressives in all but two of the many cases on that subject since Roe v. Wade was decided in 1973. Abortion under the Constitution is regarded as so black-and-white that finding common ground seems all but impossible.
When truth be told, however, one can’t help but wonder why intellectually honest conservatives are not standing behind a replacement justice who will carry forth Kennedy’s measured stance on the topic of abortion “rights.”
{mosads}I put the word “rights” in quotes not to be cynical, but because as an educator, I find that many students come to law school thinking that a constitutional right is some kind of goodie. But a constitutional right is really about keeping government off your back.
In 1973, when the Supreme Court held that a woman has a right to an abortion, what it was saying is that the government’s power over the individual is limited. The Roe court identified that limitation in the Constitution’s due process clause.
The idea is that government cannot take away life, liberty or property without affording a hearing. No more throwing people in jail arbitrarily.
Roe derived from a 1923 case called Meyer v. Nebraska, which involved the trial and conviction of a teacher who had read a German Bible to a fourth grader. The state of Nebraska had passed a law banning the teaching of anything other than the English language before the eighth grade. Reversing the teacher’s conviction, the Supreme Court wrote that “the salutary purpose of the statute is clear. The Legislature had seen the baneful effects of permitting foreigners, who had taken residence in this country, to rear and educate their children in the language of their native land. The result of that conviction was found to be inimical to our own safety.”
In slapping Nebraska’s overbearing hand, the court construed the word “liberty” in the due process clause as meaning more than just a hearing before government takes something as precious as liberty away. Meyer, after all, got a trial. As a matter of constitutional procedure, he could fairly go to jail. The court held that liberty means more; it “denotes not merely freedom from bodily restraint but also the right to the individual … generally to enjoy those privileges recognized at common law as essential to the orderly pursuit of happiness by free men.”
Roe picked up this mantle to hold that the pursuit of happiness by a free person means that the government cannot send a woman to jail for making a personal decision about ending a pregnancy on the rationale the government thinks the decision is categorically wrong — much like the state of Nebraska could not jail people on its belief that “that the English language should be and become the mother tongue of all children reared in this state.” The Meyer court accordingly added to the list of rights that are bound-up in the concept of liberty “the natural duty of the parent to give his children education suitable to their station in life.”
To be sure, scholars and judges today debate whether the Meyer/Roe notion of substantive due process — the idea that government cannot take away certain rights, whether it affords a hearing or not—is constitutionally legitimate. After all, the right to make decisions about your child’s education is not express in the Constitution. But like the meaning of the Bible or a poem, there are lots of things about our working Constitution that fall in this “implied” category — things that we would not want to do away with, regardless of political or ideological leanings.
In 1992, a plurality of the court in Planned Parenthood v. Casey (which included Kennedy) both upheld Roe and recognized the state’s countervailing “important and legitimate interest in potential life.” A strong argument can be made that the interest in potential life distinguishes abortion from the facts of Nebraska. But it does not alone justify a complete evisceration of any limits on the government’s ability to constrain a woman’s autonomy over a pregnancy.
Regarding this grey area, conservatives need only consider the Second Amendment. While it protects a right “to keep and bear arms” (without defining the latter term), it is hard to dispute that the state has a countervailing “important and legitimate interest” in protecting innocent children from being shot, maimed or killed while at school. Again, this doesn’t mean that the state can take away all guns for all purposes. But it also doesn’t mean that the Constitution precludes all safety-related limits on “arms.” It’s all about balance, after all — something that is sorely missing in American discourse today.
Kim Wehle is a professor at the University of Baltimore School of Law and a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation. Her forthcoming book is “Constitutional Literacy: What You Need to Know About the Constitution Without Going to Law School.”