Total abortion bans are wrong, but Roe v. Wade as constitutional law was garbage
"Two wrongs don't make a right" was never more apposite
I don’t want states to ban abortion. I understand how some consider the act to be murder and sincerely believe that the virtues of preserving a woman’s reproductive choices must yield once another life, or at least a potential life, has come into being. And I also understand how some consider placing any meaningful restrictions on abortion to be one of the grossest forms of infringement of a woman’s autonomy over her own body, a sort of biological slavery. And I understand the myriad viewpoints somewhere in between. To my mind as a libertarian, it’s exceedingly bad policy to take such sensitive, fraught decisions away from individuals and private organizations, particularly using so blunt an instrument as a government ban.
It’s not a topic I like to discuss, because I don’t have strong feelings about it and I know other people do, on both sides. I’m philosophically inclined to leave decisions related to such heated, personally sensitive topics to individuals. And by individuals I don’t mean just women. I do think prospective fathers should have something to say about it, although surely the balance must tip more heavily toward the person whose body is directly affected for nine months (“affected”? Could I make it sound more clinical? The fact that I labored so long over how to phrase that confirms what a linguistic landmine this topic is). I say that knowing that if you believe abortion to be murder, roughly half the lives at stake will be male. These observations are as unavoidable as they are provocative.
In the wake of something as seismic as the Dobbs decision, deploying strident slogans dismissive of others’ concerns and motivations on this issue are not helpful. “If she didn’t want a child, she shouldn’t have gotten pregnant,” is not helpful. “If these ignorant fascists really wanted to protect children they’d ban guns and adopt kids” isn’t either. That said, perhaps those who feel like the losers in this decision are due a little more leeway in expressions of frustration and anger right now than those who are triumphant, however virtuous the latter feel their cause.
For better or worse I come down on the side of allowing individuals to make these decisions, but that doesn’t mean I’m not conflicted. While I’m against the bans enacted by dozens of states that will now take effect, I agree with the majority in Dobbs. There is no federal constitutional right to abortion because the constitution simply doesn’t address abortion. At all. The fact that the Supreme Court has said for 50 years that it is constitutionally protected doesn’t change that. If it’s a topic for regulation or governmental meddling at all, then, in the absence of a federal constitutional amendment, it’s one for the states.
Roe v. Wade was one of the most poorly argued decisions ever issued by the Court. Because the majority wanted to perpetuate and enshrine a trend that had developed toward liberalization of abortion laws in a number of states, they issued a decision that created a right out of thin air, with no basis in the text of the constitution, actual or reasonably inferable. And this newly invented right was not the stuff of typical constitutional rights that deal in broad principles. Rather, it was one that required the court to issue what read like detailed guidelines delineating the outlines of the right and how and when it could be regulated based on the arbitrarily chosen dividing lines of pregnancy trimesters and vague, evolving criteria with no basis in history, such as viability of the fetus. In other words, it read not like constitutional law, but like legislation, which is exactly the tool that should have been used — by legislatures — to deal with this issue, assuming there was going to be a governmental solution at all.
Roe’s flaws weren’t entirely novel. It built upon previous errors. In a series of prior cases dealing with matters such as the right to marry (including the right to enter into an interracial marriage) and the right to use contraception, the Court had postulated a general right to privacy in the Constitution, at least in certain areas of life. They did this relying primarily on what’s called the Due Process Clause of the Fourteenth Amendment. That clause provides that no State shall “deprive any person of life, liberty, or property, without due process of law.” These are the words that have been used to imply a myriad of substantive rights that, while desirable (at least to me), were not intended to be placed outside the purview of elected legislators and are not really constitutional law. Not depriving people of liberty without due process of law means just what it sounds like, a procedural protection, not a substantive one. In that I agree with Justice Clarence Thomas, who, despite what many say, also thinks many laws that aren’t unconstitutional are silly, frivolous, or outright wrong.
Some people speak favorably of a “living” constitution, believing that nine unelected judges should declare new things as rights every generation or so in order to keep up with the times. Removing whole areas of policy from the purview of elected legislatures and placing them outside their reach. Like the late Justice Antonin Scalia, I’m an advocate of a dead constitution. And this feels like a paradox to me. I’m a libertarian. I’m an advocate of small government, of government staying out of people’s bedrooms and out of decisions that should be private. Like, for example, the decision whether to choose an abortion in the early stages of pregnancy. So some might think I should believe in an expansive view of judges’ ability to declare new rights by reinterpreting old texts that used to mean nothing like what activists judges now deem them to mean.
But, you see, I’m also a federalist and a constitutionalist. Not believing that nine unelected individuals have the right to declare something outside the purview of legislative regulation is not the same as believing that that thing should be regulated. Just because something is bad policy doesn’t mean it’s unconstitutional to make it policy. I think many economic laws and regulations are very bad policy. I think minimum wage laws are terrible because they essentially make it illegal for a business to employ an individual if the value of that person’s labor to the business is below a certain arbitrary dollar threshold. That policy usually negatively effects high school-aged kids looking to get their first job and gain valuable experience for a future, higher paying job. (Most people on minimum wage are not heads of households.) Many businesses simply won’t hire more employees if the cost of labor is made excessive by minimum wage laws and other regulatory barriers to employment. But I don’t contend that making such laws is unconstitutional, because it’s not.
If you want to change the constitution, whether the federal constitution or one of the fifty state constitutions, go through the process to have them amended. Yes, that’s an exceptionally laborious process with no good prospect for success, but there’s a reason for that: our system of government was designed so that it would be difficult to excise whole areas of policy from the purview of democratic politics and place them in the realm of uninfringeable “rights”. But the Court in Roe ignored all that. The majority believed very strongly that abortion should not be banned and should be very lightly regulated in the first trimester. Not an unreasonable belief, many of us think. And that’s precisely why state laws were trending in that direction. But instead of advocating for that policy in legislatures, or advocating a constitutional amendment, they cheated. They invented a right that no one previously thought existed in the constitution, and when I say “no one”, that includes many judicial scholars at the time who thought abortion should be legalized by states. And this new right they invented had no rational foundation in the words of the actual constitution that was supposedly being interpreted. It’s only because fifty years have passed under Roe that many think such a right is self-evidently there when it’s not.
Why is this important? If the constitutional right to abortion has been inferred since 1973, rightly or wrongly, what was wrong with keeping the status quo, which so many have come to rely upon? Because the consequences of lying about what the constitution says and protects are not benign. If activist judges are not bound by the words themselves in interpreting what are constitutional rights outside the purview of the legislature, then they also won’t be bound by the words in interpreting the powers granted to the federal government to legislate by that same constitution. We often forget, but unlike the states, which were intended to have broader sovereignty than the federal government, the feds are only supposed to have the powers to legislate and govern that are strictly enumerated by the constitution as being granted to that level of government. All others are reserved to the states, which are closer to the people and at least theoretically more influence-able (I invented a word!), or to the people themselves.
But just like in the interpretation of rights under the constitution, in the interpretation of what powers have been granted to the federal government as against the states or the people themselves, time has rendered the idea of a limited federal government almost meaningless. Today it’s virtually considered that the federal government can legislate in whatever area it wants so long as it gives a token nod toward some enumerated constitutional power, like the power to regulate interstate commerce. This is dangerous. No entity has more unchecked power over more people, both within the United States and without, than the US federal government. The harms of this play out in all kinds of ways, but perhaps none more insidious as of late than the vast federal regulatory agencies that have been “captured’ by the industries they supposedly regulate and end up doing their bidding, at the cost of everyday people’s livelihoods, safety, and health (yes, I’m thinking particularly now about the federal health regulatory agencies like the NIH, the CDC, and the FDA, which prioritize pharmaceutical industry profits over public health).
This danger also plays out in foreign policy and war. The US has been in a virtually constant state of undeclared war for over 30 years now, a state of affairs not originally conceived as being permissible constitutionally. Only Congress is granted the right to declare war, and we haven’t fought a declared war in over 70 years. The result of this perpetual, undeclared war machine has been millions of foreign and American deaths, decades of radicalization of entire new generations of militants who hate America and the imperialism it represents to them, and the enrichment, at the expense of poor and middle income Americans, of vast industries of death and destruction. The annual reports of drug companies now crow about the profits from pandemics like those of the bomb-makers have for decades. If you don’t think that means something about how government works in this country and the dangers of asserting unchecked authority, your eyes are closed.
Rights are important. So are words. If we have to ignore the actual words of a law (and at the end of the day, the US constitution is just a law) in order to read into it something we wish were there but that isn’t, maybe we should be looking to other means to protect that right. I realize that’s cold comfort for millions of women who live in states that now ban abortion. But maybe we should be advocating and convincing. Maybe we should be amending. But whatever we do, let’s not pretend. A half century’s worth of pretending is no better than a second’s worth.
Richie Graham is based in Little Rock Arkansas USA and writes from a free-market libertarian, anti-interventionist perspective.