Autonomy's Magic Wand: Abortion and Constitutional Interpretation

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University of Pennsylvania Law School Penn Law: Legal Scholarship Repository Faculty Scholarship Autonomy's Magic Wand: Abortion and Constitutional Interpretation Anita L. Allen University of
University of Pennsylvania Law School Penn Law: Legal Scholarship Repository Faculty Scholarship Autonomy's Magic Wand: Abortion and Constitutional Interpretation Anita L. Allen University of Pennsylvania, Follow this and additional works at: Part of the Constitutional Law Commons, Courts Commons, Fourteenth Amendment Commons, Gender and Sexuality Commons, Jurisprudence Commons, Law and Society Commons, Philosophy Commons, Privacy Law Commons, Public Law and Legal Theory Commons, Sexuality and the Law Commons, Women Commons, Women's Health Commons, and the Women's Studies Commons Recommended Citation Allen, Anita L., Autonomy's Magic Wand: Abortion and Constitutional Interpretation (1992). Faculty Scholarship. Paper This Article is brought to you for free and open access by Penn Law: Legal Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Penn Law: Legal Scholarship Repository. For more information, please contact AUTONOI\1Y9S MAGIC WAND: ABORTION AND CONSTITUTIONAL INTERPRETATION ANiTA L. ALLEN* Constitutional law changes, even though the Constitution remains the same. American abortion Jaw aptly illustrates this point. Although the text of the Fourteenth Amendment has remained constant since the United States Supreme Court decided Roe v. Wa de 1 in 1973, the Court has altered its position on the constitutionality of restrictive abortion statutes. According to Roe, the Due Process Clause prohibits government from criminalizing early abortions. Yet, recent decisions permit government to restrict abortion throughout pregnancy in the interest of maternal well-being and unborn life. Moreover, four Justices favor overruling Roe outright.2 This essay comments on the changeability of constitutional law and its interpretation by the Supreme Court, emphasizing the deterioration of the Supreme Court doctrine that the Fourteenth Amendment encompasses a fundamental right of privacy broad enough to include abortion. Another closely related doctrinal shift is the Court's virtual about face on the constitutionality of abortion restrictions. The about face began in 1989 with Webster v. Reproductive Health Services, 3 a decision upholding restrictive provisions of Missouri's abortion law, 4 and continued in 1992 with Planned Parenthood v. Casey.5 Casey tested the constitutionality of provisions of the Pennsylvania Abortion Control Act that permitted abortion but subjected patients and their health care providers to controversial consent, notification, and public reporting requirements.6 Specifically, the law required (1) that minors obtain parental consent or a court order; (2) that married women not meeting one of several exceptions notify their husbands; (3) that all women give ;'informed consent after receiving information discouraging abortion and waiting twenty-four hours; and (4) that abortion facilities submit and disclose detailed public reports7 * Professor of Law. Georgewwn l.iniversity Law Center. Ph.D.!979. university of Michigan: J.D. 1984, Harvard Law S..:hool U.S. 113 (1973). 2 They are Chief Justice Rehnquist, and Justices White. Scalia, and Thomas lis 490 (!989). 1 Si!e Anita L. Allen. Webster,\larks Time. 2 BJOL\W (1969) (discu sing VVcb tqr) S. Ct (1992) 6 18 P \ Cor.-s. ST-'..T ( 1990) 7 hi. Critics fe:11 that this last requirement will comprom1sc patient anonymity Jnd drown abcjrtion providers in rctpenvork. 68.3 684 BOSTON UNIVERSITY LAW REVIE W [Vol. 72:683 In Thornburgh v. American College of Obstetricians & Gynecologists, 8 an earlier test of Pennsylvania law, the Court invalidated informed consent and record-keeping statutes similar to those revisited in Casey. Thornburgh was a resounding endorsement of Roe. Writing for the Court, Justice Blackmun condemned as unconstitutional state efforts to legislate time-consuming, expensive, and invasive preconditions to abortion services.9 Under Thornburgh, a state may neither ban nor restrict abortion by encumbering the decision to abort. In Thornburgh, as in Roe, a majority of the Court portrayed the right of abortion privacy as fundamental. In effect, Roe and Thornburgh declared legislative interfe rence with free choice prima facie invalid. Most observers correctly predicted that a reconstituted panel of nine Justices would decide Casey differently from the Court's Thornburgh decision just six years earlier. After Thornburgh, the number of Justices subscribing to the jurisprudence of fundamental abortion rights dwindled. Subjecting strikingly similar laws to strikingly dissimilar analysis, the Casey majority affirmed the essential holding of Roe, 10 but abandoned the presumption that most restrictions on abortion are unconstitutional. Casey portrayed legislated impediments that do not unduly burden the fundamental abortion right as prima facie valid, even if they make abortion inconvenient and expensivey The Court stated that an anti-abortion statute imposes an undue burden if it places a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetusy Reaffirming Roe in Casey, but abandoning its strict standard of constitutional validity, the Court labored to avoid the appearance of constitutional change. It elaborated its obligation to follow precedent 13 and the impropriety of reexamining the prior law with[out] any justification beyond a present doctrinal disposition to come out differently from the Court of 1973. 14 The majority opinion stressed Roe's promise of female liberty. The Court's feminist rhetorical flourishes linked a woman's unique reproductive liberty to her ability to participate equally in the economic and social U.S. 747 (1986). 9!d. at Casey, 112 S. Ct. at The Casey Court referred to the essential holding of Roe as the recognition of:!d. the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State... (,] the State's power to restrict abortions after fetal viability,... [and] the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. 11!d. at Id. at Jd. at Id. at 1992] AUTONOMY'S MA GIC WA ND 685 life of the Nation 15 in roles she chooses. Declaring the importance of intimacy and personal life, the Court repudiated categorical abortion bans and rejected Pennsylvania's regulation requiring spousal notification as unduly burdensome.16 In reality, however, the Court's version of stare decisis openly announced a new, weaker standard of review for all abortion cases and employed that standard to uphold statutes virtually identical to those it declared unconstitutional just a few years ago. The Court upheld the stringent informed consent/twenty-four hour waiting period. Moreover, Casey jettisoned the defining trimester analytic framework of Roe, which prohibited states from regulating abortion for maternal and fetal well-being until the second and third trimesters of pregnancy, respectively. As originally interpreted, Roe may be cited as grounds for severely limiting until the third trimester state intervention premised on the interest of the unborn. Although Casey prohibited pre-viability blanket bans on abortion, the majority maintained that states have an assertible interest in the fetus at all stages of pregnancyy As a result, Casey departed significantly enough from Roe to lessen its vaunted 1egitimacy. 18 Casey can be seen as just the kind of unprincipled politic(llly opportune decision making made unnecessarily and under pressure 19 that the majority claimed it wanted to avoid. Stressing that the Roe framework had not proven unworkable, the Court nevertheless significantly modified the constitutional law set forth in Roe. Justices Blackmun and Stevens voted in partial dissents in Casey to preserve the classic version of Roe. Although the conservative block, consisting of Justices Rehnquist, White, Scalia, and Thomas, decided it was time to rewrite constitutional abortion law, the moderate block, consisting of Justices O'Connor, Kennedy, and Souter, thought it was time to reread it. Hmv did the Court get from Roe and Thornburgh to Casey? How does constitutional law change even though the Constitution remains the same? In one sense the move from Roe and Thornburgh to Casey is easy to comprehend. With departures from and new appointments to the Court, the number of Justices willing to defend the right to choose abortion on fundamental privacy grounds shrank. The Court, viewed as a collective entity. simply changed its mind. The Court, however, should not change its mind so freely. Although it can be explained as a political shift to the right in the Court's composition, the transition from Thornburgh to Casey may nevertheless appear inexplicable to members of the general public predisposed to view the discipline of constitutional interpretation as exact, binding, and, once the judge dons the black robes, apolitical. If constitutional interpretation were an exact, bind- 1!d. at Id at !d. at Id 19 Id at 2815. 686 BOSTON UNI VERSITY LAW REVIEW [Vol. 72:683 mg, and apolitical discipline, the mere change in learned personnel would not change the meaning of fundamental Jaw. We would not go from a Thornburgh to a Webster in only three years, or from a Roe to a Casey in a mere twenty. The disempowered status of the fundamental right to privacy demonstrates that even rights formulated in the sweeping language of fundamentality and sanctity, rights that promise to function as magic wands for autonomous individuals, are vulnerable to repudiation if new Justices conclude that earlier ones committed egregious error. In varying degrees, the Justices who have joined the Court since Roe-Scalia, Thomas, Souter, Kennedy, and O'Connor-like Chief Justice Rehnquist and Justice White, believe that Roe contains improper reasoning and that its mistakes may not stand. There is, however, notorious disagreement about the extent to which Roe was erroneous. What I characterize below as backward-looking'' and downward-looking approaches to constitutional interpretation20 contributed to the Court's rapid reassessment of Roe. Accounting for change in the jurisprudence of abortion rights is an occasion for reflecting on the implicit legal and interpretive philosophies of the federal judiciary in constitutional opinions. In the abortion field, constitutional law has changed because the composition of the Court has changed Republican presidents have appointed more moderates and conservatives and fewer liberals. I suggest that, although conservative, liberal, and moderate Justices alike employ backward-looking, positivistic rhetoric to justify their decisions, the contingent of Justices with aggressively-and, arguably, heedlessly-backward-looking substantive approaches to constitutional interpretation has grown. Aggressively backward-looking substantive approaches have undercut the jurisprudence of fundamental privacy that once supported strict judicial protection of abortion rights. As a result, \\'Omen seeking abortions face numerous new restrictions and the threat of ultimate prohibition. LIBERATING AUTONOMY Nearly thirty years ago, the United States Supreme Court decided Griswold v. ConnecticutY The Griswold Court held that states may not criminalize a married woman's use of birth control. as Connecticut and many other states had done since the Comstock Era of the late nineteenth century. 2 The Griswold Court based its holding on a general fundamental constitutional right to privacy, announcing for the first time the existence of a discrete, general constitutional right of privacy. Previously. the Court had :tppeaied to the concept of privacy occasionaily to justify or ; eject L:gislative :J. l Sc-u inji-a text accompanying notes i U.S. 479 (196:5). 22 DEHOR. \H L. RHODE, JUSTICE.-\!\:D GENDER 204, 264 (1989) (Irctl'lr1. the: nohing rdanonship between gender and the law in the United States). 1992] AUTONOMY'S 1WA GIC WA ND 687 or Jaw enforcement policy.23 Furthermore, early in the century, state courts had begun recognizing privacy rights expressly in tort law, inspired by Samuel Warren and Louis Brandeis's famous 1890 Harvard Law Review article.24 Warren and Brandeis, however, limited their argument to the state common law of torts. Moreover, Justice Brandeis's eloquent appeal to the value of privacy in a dissenting opinion in an early Supreme Court wiretapping case25 fell short of recognizing an independent constitutional privacy right. Griswold characterized the right of privacy as fundamental. As later cases would explain, fundamental rights qualify for heightened judicial protection. 26 Fundamental rights are those the Court deems to be either deeply rooted in this Nation's history and tradition 27 or implicit in the concept of ordered liberty so that neither liberty nor justice would exist if they were sacrificed. 28 In enacting legislation affecting a nonfundamental constitutional right or liberty, state and federal lawmakers may impinge upon that constitutional right or liberty if the legislation is rationally related to the fu rtherance of a legitimate governmental interest. By contrast, designated fundamental rights are so strong that government must establish a compelling state interest in legislation that impairs them. l \ccordingly, the fundamental right to privacy requires courts to invalidate legislation involving public interference with private decisionmaking, unless strict judicial scrutiny uncovers a compelling state interest.29 The Griswold case appeared to signal that the courts would strictly protect against laws impinging upon privacy.30 At first, Justice Douglas's majority opinion explaining the jurisprudence of constitutional privacy caused some confusion31 Douglas raised the notion of a totalitarian specter of police 23 Olmstead v. United States, 277 U.S. 438,478 (1928) (Brandeis, J., dissenting) ( The makers of our Constitution.. conferred, as against the Government, the right to be let ::done-the most comprehensive of rights and the right most valued by civilized men. ). 2.; Samuel D. \Varren & Louis D. Brandeis, The Right to Privacy, 4 HARY. L. REV. 193 (1890). 2'; 0/msiead. 277 U.S. at li Bowers v. Hardwick, 478 U.S 186, 191 (1985) (arguing that consensual sodomy bet'. een homosexuals is not a fundamental right). 27 iyloore v. City of E. Cleveland, 431 U.S. 494, 503 ( 1977). ::s Palko v. Conn.;cticut. 302 U.S , 325, 326 (1937) (finding a state statute allowing the :;tate to appeal criminal cases to be consistent with the Fourteenth Amendment). 29 Recently. the Court has begun to inquire whether challenged legislation unduly burdens a constitutional right. When it is deemed not to, strict scrutiny yields to a weaker standard of review and state action is upheld. See infra text accompanying notes (discussing parental notification cases). 30 But they have not. See. e.g.. Cruzan v. Director, Mo. Dep't of Health, 497 U.S ( 1990) (upholdi!lg a state requirement that evidence of an incompetent's wishes as to the \'.ithdrc;wal of life-sustaining treatment be clear and convincing). :JJ Sec i\nita L. Allen. Taking Liberties: Privacy. Pri; are Choice. and Social Col/lracr Theon. 56 U. CI:--;. L Rt:v (1987). 688 BOSTON UNIVER SITY LAW REVIEW [Vol. 72:683 entering the sacred realm of the marital bedroom, checking for evidence of illegal birth control practices. Yet, he was less concerned about invasions into physical privacy-trespassing typical of Fourth Amendment search and seizure cases-than invasions into decisional privacy.32 Douglas presented a vision of American life in which men and women, consulting medical professionals of their own choosing, would have the legal power to decide for themselves certain important matters touching family life, especially whether and when to have children. In the ancient Western world, the Greeks and Romans understood social life to include separate public and private realms.33 Matters relating to the household, women, children, and servants or slaves were deemed-and denigrated as-private affairs. Although the value placed on the private sphere has changed, the cultural assumption of an appropriately private sphere remains. Griswold reflects this value by holding that courts must interpret our Constitution to include broad protection of what is appropriately considered private life. 34 The ultimate value of decisional privacy rights regarding procreation may be that such rights make us more fit for our social roles in group life.35 Yet, the flourishing of communal life depends largely on the flourishing of individuals who are morally autonomous and free to act on their own judgments.36 Moral autonomy connotes the capacity for rational, responsible self-regulation and self-determination.37 A society's laws can either promote or impair moral autonomy so conceived. In the nineteenth century, John Stuan Mill made the classic liberal defense of legal autonomy, arguing in favor of freedom from governmental interference in the broad domain of self-regarding conduct, which defense received support from the utilitarian belief that individuals know themselves and therefore their interests best ld. 33 See HANNAH ARENDT, THE HUMAN CONDITION (1958) (discussing various pre-modern views of the public and private realms); see also JDRGEN HABERMAS, THE STRUCTURAL TRANSFORMATION OF THE PUBLIC SPHERE: AN INQUIRY I NTO A C1\TE GORY OF BouRGEOIS SociETY 3-5 (Thomas Burger trans.. The MIT Press 1989) ( 1962) (discussing the public and private spheres of the Greeks and Romans). 3' Griswold, 381 U.S. at See ANITA L ALLEN, UNEASY ACCESS: PRIVACY FOR WOMEN IN.\ FREE SOC! ETY (1988) (analyzing privacy as it relates to women in America). 36 Jd 37 See generally IMMANUEL KANT, FOUNDATIONS OF THE METAPH'r'SICS OF MoR.A.LS AND WH:'\T ls ENLIGHTENMENT (Lewis W. Beck trans., Bobbs-Mcrrill Educational Publishing 1981) ( 1785) (arguing that human beings possess moral autonomy and that rational and free beings are properly ascribed moral status and moral responsibility). 38 JOHN STUART MILL, 0:--.: LlBERTY 10-11, 208, PASSJM (David Spitz ed., Norton 1975) (1859) (asserting the principle that only self-protection warrants society's control over the individual). 1992] AUTONOMY'S MA GIC WA ND 689 Liberal philosophers Joel Feinberg,39 Gerald Dworkin,40 and David A.J. Richards41 maintain that the moral basis for constitutional privacy rights is that they protect the formation and exercise of moral autonomy. Moral autonomy has not had an easy life in the hands of the law. As often as the law has empowered human beings by protecting their morally autonomous choices, it has subordinated, enslaved, and destroyed them. The Griswold case might have appeared to be the final legal liberation of moral autonomy in the United States. Griswold seemed to place a magic wandthe fu ndamental right to privacy-in eager hands. The right to privacy was autonomy's magic wand, a deft restraint on public regulation of decisions about health, sex, and procreationy One of the first categories of oppressive law to go was a vestige of American racism and slavery: state laws prohibiting marriage between men and women of different races43 The ban on interracial marriage fell under the privacy doctrine, despite strong sentiments, then and now, that miscegenation is unnatural and ungodly.44 IMPOTENCE AND DEMISE When Roe was decided in 1973, the right to privacy must have seemed like a powerful tool indeed. Under Roe, women have a privacy right that allows them to terminate their pregnancies. They have this right, notwithstanding significant public disapproval.45 That, however, is the nature of a 39 JOEL FEINBERG, HARM TO SELF (1986) (exploring the limits imposed on personal autonomy by the rivalry between criminal law and individual moral autonomy). 40 See generally GER
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