Now that I have read yet another provocative blog from Steve, I do not know whether to regard him as friend or nemesis. But no matter which way that question is answered, there is no question that he takes no hidden delight in drawing me out on a variety of issues that are likely to generate heat (but not necessarily light) in the upcoming Roberts hearings. What are my views on abortion, as a Constitutional matter?
There is no simple answer to this general question, so I shall start with the original understanding that surrounded the adoption of the Fourteenth Amendment, on which (for all it appears) the right to abortion in Roe might rest. As a historical matter, Roe unmistakably cuts against the grain of the nineteenth century understandings, in which all of the various grants of rights under the Constitution were subject to a police power exception that embraced, the health, safety, morals and general welfare of the population at large. Now this list should not be read as coextensive with the individual rights that specific Constitutional provisions protect; statutes that protect one industry or firm from competition with another would still be out of bounds, as in Lochner v. New York. But all matters that pertained to sex, marriage, and procreation fell squarely within the morals head of the police power, under which claims of personal liberty came out second best.
The next question is what arguments might be used to undermine this conclusion. Here the anti-historical argument asks the simple question, why is the morals head of the police power read into the Constitution, since it is not there explicitly. It can�t be just to deal with matters of disease and contagion that could follow from certain unregulated sexual practices, for example, as these are already covered under health and safety. Indeed, the disturbing feature about this head of the police power is that it appears to give undue weight to the offense that others take of certain practices, which is not consistent with a small government reading of the Constitution. A moderate libertarian could easily think that this original understanding should come out second-best in conflict with the underlying logic of the Constitution. Morals have to go, or at least be trimmed back.
It is, however, far from clear that this structuralist approach saves Roe. Over 30 years ago I wrote an article in the Supreme Court Review, critical of Roe, which its late editor Phil Kurland titled �Substantive Due Process By Any Other Name: The Abortion Cases� (1973 Sup. Ct. Rev. 159). But this title misled, for the article itself made the claim that the substantive argument against Roe accepted substantive due process as a general matter, only to deny its application in this case. That last judgment was based on the narrowest reading of the police power that embodied the Millian principle against harm to others, which would include the death of the unborn child if it was a person, and might include it even if it was something less than that but still more than a clump of cells. Remember, if the police power could protect dogs from abuse, then why not let the state protect the embryo from the moment of conception? It is therefore the troublesome status of conception that makes this case so difficult to deal with. But if there is no clear view on that issue, then the state should have its way and the prohibition should stand, unless for practical reasons the state chooses (as many did before 1973) to relax it. From this it follows that matters of parental consent, and late-term abortions fall within the police power as well.
Indeed many of the more qualified defenses of abortion concede the force of this view. If one says that abortions are permissible to save the life of the mother, or to deal with rape or incest, or with severely defective infants, then the implicit argument here is that there is some justification for the harm inflicted on the embryo, which is far removed from the Roe claim that the termination of pregnancy (delicately described as the right to choose, so as to make it indistinguishable from the question to marry or become pregnant) raises no questions of state authority at all.
And that is about where I stand today. The new emphasis to save Roe from oblivion is to treat it as a sex discrimination and not a privacy or autonomy case, but that maneuver is of little good. The same police power issues arise with equal protection as they do anywhere else. So the grand ontological question stands: what, or when is a person? And note that this approach does not say that Roe was wrong because it was too soon and did too much. Quite the contrary. It is not a prudential warning that certain strong moral claims should have only delayed recognition by the Supreme Court, but a challenge to the basic claim that abortion generally should fall outside the police power. So, oddly enough, the abortion cases are far more problematic than Lochner v. New York, for that latter case does not raise police power issues of the same gravity as Roe. Judge Roberts should feel free to disagree with my views, as should Steve or anyone else.