Nearly 50 years after its “Roe v. Wade” precedent in 1973, the Supreme Court is weighing the constitutionality of a Mississippi statute banning almost all abortions after 15 weeks of pregnancy. The plaintiffs in “Dobbs v. Jackson Women’s Health Organization” have asked the Court to overturn “Roe” and find that the 14th Amendment of the Constitution does not protect a woman’s right to have an abortion and that bans on abortion before fetal viability — the point when a fetus is likely to survive outside the womb — are thus constitutional. As the justices deliberate, it appears that permanent resolution of the abortion debate in American society may be impossible.
When the Court held in 2015 that the Constitution’s 14th Amendment protects a right to same-sex marriage, it essentially resolved the nationwide marriage debate — not only does every state allow same-sex couples to marry, but the issue has also disappeared almost completely from national contention. Though it has only been several years since “Obergefell v. Hodges” (2015), it has already cemented itself as a successful example of the Court seeking to remove a political issue from the hands of the legislature.
In a similar fashion, the Court attempted to settle the abortion debate almost five decades ago. Why didn’t it work? What makes it different from same-sex marriage? And what can “Roe” and “Obergefell” tell us about the role of the Court in different political situations?
First, let us look at the doctrine of substantive due process, the jurisprudential foundation for both opinions. The 14th Amendment provides procedural protection against deprivation “of life, liberty, or property, without due process of law.” But the Court has held many times, often controversially, that the Due Process Clause also provides substantive protection against certain laws. In essence, when the Court finds that a law infringes upon a “fundamental right” not mentioned directly in the Constitution, it holds that the government is denying people their liberty without due process of law (even if there has been procedural due process of law). The basis for substantive due process is that it is necessary to protect liberty where the Constitution does not provide citizens with explicit guarantees beyond its relatively few enumerated rights.
Substantive due process is the means by which marriage, interstate travel, and procreation are fundamental rights even though they are unmentioned in the Constitution. Originalists — jurists who adhere strictly to the “original meaning” of constitutional provisions, seeking to relegate every issue not explicitly decided by the Constitution to the legislative arena — are quick to criticize substantive due process as an instrument that liberal judicial activists wield to invent new rights. Still, even most originalists acknowledge that certain rights, such as those mentioned before, are fundamental despite not appearing directly in the Constitution. The main point of dispute is where and how frequently the Court should invoke the doctrine.
The Court’s approach in both “Roe” and “Obergefell” was to apply substantive due process to recognize a new 14th Amendment individual right that could not be overridden by legislation adopted by popular consensus. For abortion, the Court found that an unenumerated right to privacy “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” It reasoned that the state’s interest in protecting the life of the fetus becomes compelling only at fetal viability, because the fetus presumably has the capacity for meaningful life outside the womb.
For same-sex marriage, the Court reiterated earlier precedents establishing marriage as a fundamental right via the Due Process Clause, finding that the Equal Protection Clause extends this right to same-sex couples. Each case’s reasoning is complex and distinct, but a basic connection is that each recognized rights under the 14th Amendment’s protection that are not mentioned in the Constitution. The Court effectively substituted controversial legal reasoning for the legislature’s ability to address these issues.
And this is the central criticism of an active substantive due process approach: it allows activist judges to interpret the Constitution in limitless ways that do not reflect the framers’ original intentions. It removes political issues from what the framers considered to be the legitimate domain of the people — the legislative branch — and transfers them to the hands of unelected judges. If one can take the Due Process Clause to provide a right to abortion, they object, what right could it not encompass if enough judges willed it to?
There is a fundamental balance between ensuring the judiciary is not overshadowing the legislative process through overzealous constitutional activism and recognizing that legislative discretion can sometimes trample the rights of unpopular minorities in ways that violate the Constitution’s promises of liberty. But, again, the country seems to have moved on from the marriage debate, whereas abortion remains one of our most polarizing issues. What accounts for the difference?
First, abortion jurisprudence involves an arbitrary but very important value judgment: fetal viability as the marker of when abortion prohibitions are protected under the Constitution. Justice Harry Blackmun, in his “Roe” majority opinion, argues that “When those trained [in] medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.” In other words, the Court does not mean to resolve the moral question of abortion. It is merely identifying compelling interests in both maternal health and fetal life and devising a scheme — arbitrary, yes, but with a solid constitutional basis — for evaluating them against each other to resolve cases and controversies involving abortion.
However, in seeking to avoid weighing in on the morality or merits of abortion, the Court may have done just that — it legitimized the arbitrary threshold of fetal viability as the marker of constitutional protection for the right to abortion. Independent of its legal manifestations, the moral question of abortion often hinges on the precise point at which a fetus is considered a human life. Many pro-lifers find this point to be conception, while the pro-choice movement splits between a variety of points during pregnancy, including viability and, more rarely, birth itself. The Court, even though it purports to remain neutral on this moral question, has held that abortion prohibitions before viability violate the Constitution, while those after viability do not. To pro-lifers who judge abortion as murder, this may seem completely arbitrary and, more crucially, founded upon a particular moral analysis of abortion. They argue that the Court taking away society’s right to make such moral judgments through the legislature amounts to a moral, political judgment on behalf of the Court itself.
Compare this to same-sex marriage, an issue where public attitudes have evolved in countries all over the world as it has become more normalized and socially acceptable to be gay. Just a few years after preventing gay people from having the right to marry was a central culture war issue for the GOP, public support for same-sex marriage is at an all-time high, with a majority of Republicans, including 61% of young Republicans, now in favor. The marked increase in acceptance since 2015, when the Court resolved the political issue, shows few signs of reversal. As Republican state legislatures and attorneys general pass laws and file lawsuits aimed at challenging “Roe” or banning abortion in the case that the precedent is overturned, there is no observable, comparable trend for same-sex marriage.
It may be impossible to answer exactly why public attitudes towards gay people have changed so much, but I suspect social contact and visibility hold a lot of explanatory power. Around half of Americans have a close friend or family member who is gay, and the share of people who know someone who is gay has increased by more than 25 percentage points over the last 20 years. Meanwhile, since 1977, the U.S. has seen colossal increases in the share of people who believe gay people should have equal employment opportunities and adoption rights. Critically, almost four times as many Americans today believe that people are born gay as in 1977. As more Americans have shifted away from the perspective that homosexuality is a lifestyle choice, it has naturally followed that more believe that marriage — a bedrock institution in American society — should be extended to gay people.
For abortion, little of this is true. Even though abortion is a civil rights issue in that it deals with a woman’s right to choose, pro-lifers maintain that it is a women’s rights issue no less than the choice to kill a born baby is a women’s rights issue. And while almost one in four women will have an abortion by age 45, it is a medical issue and thus inherently more private — remember, the constitutional right to abortion stems from a fundamental right to privacy. Though both are fairly widespread, abortion is not as visible as same-sex relationships. Moreover, whereas debates over same-sex marriage deal with extending a widely accepted right to more people, abortion debates focus on the merits of the right itself. In the abortion debate, deeply held beliefs regarding conception and the rights fetuses are endowed with may make it harder for religious conservatives to compromise their fundamental principles on what they view as murder. Public support for abortion has remained relatively stagnant since “Roe,” and the fact that the Court is now poised to at least scale back its precedent imminently, after 50 years of “settled law,” offers some solid proof that social attitudes on abortion aren’t destined to change much at all.
We can learn a lot about our politics from looking closely at the Supreme Court — how it approaches certain issues, how it balances its duty of dispassionate jurisprudence with its situation as a political institution, and how different justices navigate judicial philosophy across issues. We often think of the Court as a separate battlefield from the political arena, but in this column, I will show how jurisprudential debates can help us see political issues in a new light.
Image by Claire Anderson is licensed under the Unsplash License.
