Federalism and the Right of Privacy.
Roe critics have relied on some variation of two criticisms of the idea of a right to choose abortion. The first criticism is basically a structural argument that focuses on the values of federalism: it is that the Supreme Court cannot decide the abortion controversy because it is reserved to be decided state by state. On this view, the Constitution does not grant a universal right of privacy that requires all levels of government to recognize the right to obtain an abortion. The Court ruling in favor of a right to choose abortion meant that the Court ignored the text and protects an illegitimate, non-enumerated right. The second criticism is more substantive; abortion is so wrong and immoral that to recognize a right to choose abortion is to ignore the right to pre-natal life. Notice that the structural and substantive objections are on such different tracks that either or both could be right. Many have used both rationales, even though they are almost always in tension and may sometimes be irreconcilable. In fact the critics of Roe have often relied equally on each of these arguments that critique Roe.
Donald Trump and the Structure/Substance Debate.
If there is tension between these views, it is significant that former President Trump has managed to embrace both. During his term of office, he endorsed the plan to enact a nationwide ban on abortion–at one point calling for a prohibition on abortions after 15 weeks. And in a television interview, he stated that abortion laws should provide for the legal punishment of women who have abortions. Such views rely on the substantive justification for overruling Roe. But notice that if the structural—states’ rights—argument inevitably protects the regulatory power of each State, one could wonder how the security of unborn life could ever be protected.
One might conclude that since the power to regulate the subject belonged to the state, overruling Roe in favor of state jurisdiction would not firmly establish or preclude the availability of abortion. Dobbs reasoned, after all, that it was the state governments who were granted presumptive power to regulate such choices, based on the states’ police power to safeguard the “health, safety, welfare, and morals” of the people. This historically was understood to mean that only the states could determine how to reconcile the competing values and interests. The Court thus emphasized that the decision in Dobbs would have the effect of remanding the abortion issue to the states. It was the state governments who were granted presumptive power to regulate such choices, as the states’ police power to safeguard the “health, safety, welfare, and morals” of the people meant that only the states could resolve the abortion availability issue.
This is at least one reason that there were at least two distinct proposed anti-Roe constitutional amendments. A proposed states rights amendment simply stated that the status of abortion could only be determined state by state. But the alternative amendment forbade any American government from creating a general right to obtain abortions, which presumed that the rights of states were not really at stake. The alternative was the idea of a right to unborn life, and “advocates of the ‘right to life’” took the view that exclusive reliance on the states’ rights case against Roe barely improved on the implication of that decision.
The answer offered by the Republican Party went beyond the structural guarantee, going so far as to identify a living fetus as a person. As early as 1976, the party platform stated its support for “the efforts of those who seek enactment of a constitutional amendment to restore protection of the right to life for unborn children.” A very similar proposal for a “right to life’ amendment remained in the platform for decades, including the platform adopted in 2016. But everyone knew how difficult it would be to adopt such a far-reaching amendment, and an effort was also made to facilitate “public dialogue” on the issue. (Elizabeth Nolan Brown, Why the New Republican Platform is Moderate on Abortion, 7/23/24.) This effort was combined with a persistent attempt to overrule Roe. The effort to overrule Roe reflected the recognition that the task would be easier to achieve than acquiring the “hard-to-achieve supermajorities in Congress and the states in support of a radical and unpopular [right to life].” Mary Ziegler, Opinion: The GOP’s bait and switch on abortion, LA Times, July 18, 2024)
Mr. Trump, and the Justices he nominated, perceived that the nation was not ready to fully embrace the alternative to the structural, states’ rights amendment. The strongest anti-Roe holding would be to read the word “liberty” expansively enough to acknowledge that women may not terminate an unwanted pregnancy. But at least one prominent scholar contends that the 2024 Republican Platform may have pulled the old sales technique called a “bait and switch.” The Court thus moved the ball two different directions at once. On one hand, the platform underscores that the Fourteenth Amendment “guarantees that no person can be denied Life or Liberty without Due Process,” and then affirms that states may “pass laws protecting those Rights.” It is possible then to expansively read the right of women to make decisions about their pregnancies, or to construe constitutional language to enable government to protect unborn life.
The World of Practice and the Arguments from Structure and Rights
All this becomes more complicated because States rights cases in general do not mean what they once did. As the nation left the nineteenth century, the standard view would likely have been that there could not be a national rule on abortion access or on criminalizing abortion. By the turning of the twenty-first century, by contrast, in our post-Dobbs world abortion opponents, such as Republican Senator Lindsay Graham, would criminalize abortion throughout the nation, while abortion advocates would enact federal legislation to codify Roe nationwide. Those who would defend Roe would move the legislative machinery in the opposite direction—codifying the holding and extending it to every state.
Former President Trump embraces the Dobbs theme of just returning abortion issues to the States. Of course, this is severely disappointing to those who opposed abortion based on the “right to life.” The issue is just complicated even more when we learn that abortion can present vexing questions even for those not simply wanting to end unwanted pregnancies. Issues related to ensuring the health of pregnant women have already complicated the questions raised by abortion. And we have realized that determining the scope of moral personhood cannot be the simple matter some would like.
An obvious difficulty is, as controversial as the rules elaborated in Roe could sometimes be, by 2000 we shared a political consensus in favor of relatively broad exceptions to abortion prohibitions. When one state made clear that it would enforce an expansive abortion prohibition that had been adopted well before Roe, which made no exception for abortions in cases of rape, it was the cause of great controversy. A number of commentators argued that members of the anti-abortion movement advocate for political decisions that even harm the interests of many women who are choosing to be mothers. E.g., Michele Goodwin, Policing the Womb: Invisible Women and the Criminalization of Motherhood (2020). Both sides might not like Trump’s final position. But if we truly did remand the question to be resolved in the States, we would move away from prohibiting virtually all abortions, and at least recognizing abortion rights consistent with a statewide consensus. Congress could also consider whether and when a national consensus could justify codifying the Roe rule.
Legal&Political 