Midnight in the Courtroom of Good and Evil
Chen, Jim, Constitutional Commentary
Degeneracy, like beauty, is in the eye of the beholder. What the Nazis thought entartet, the civilized world now calls Kunst. So it is with abortion in American constitutional law. For some, the constitutional protection of abortion has facilitated a grim harvest of unborn lives since January 22, 1973. For others, "a chill wind blows"(1) at the mere thought that abortion rights might evaporate for the "entire generation ... come of age"(2) since Roe v. Wade.
I demur. The prevailing constitutional debate over abortion is a disgrace. Villains abound left and right. Why privilege abortion, the political emblem of bourgeois feminism, over meaningful protection against poverty? What decent system of law ignores crass intergenerational injustice? So much for the hollow promise that "[o]ur Constitution is a covenant running" across the generations.(3) At the other political extreme, much of today's religiously motivated social activism effectively suggests that Christianity has no relevance after birth and before death. A plague on both their houses.
But one side did win. The conservative jihad against Roe failed. Never fear; Constitutional Commentary loves lost causes almost as much as it loves wacky fantasies. As between the two sets of whiners in the abortion debate, we should let the losers have their way. Justice Jude, grant this solitary prayer at midnight in the courtroom of good and evil. Roe v. Wade, be gone.
First, though, let's entertain a suggestion from the patron judge of legal desperation. Instead of gracelessly throttling Roe, why not eliminate that decision's immediate precedent? There is, after all, a respectable argument that protecting contraceptive use by atomistic individuals is a nation's surest symptom of moral decay. Besides, there lies an immense amount of perverse pleasure in playing havoc with the lives of American law students, who tend to be unmarried, fertile, and heterosexually active.
Very well then. Stomp that butterfly: let's assume that in Eisenstadt v. Baird,(4) the Supreme Court refused to guarantee unmarried persons a constitutional right of access to contraceptives.
Eisenstadt, truth be told, could have and arguably should have confined Griswold v. Connecticut(5) to contraceptive use by married couples. Stripped of its fundamental rights veneer, Eisenstadt would have proved an exceedingly simple application of rational basis review. The government has a "strong interest" in controlling the sexual activity of young, unmarried heterosexuals.(6) And how can a classification disadvantaging unmarried persons be suspect?
Eisenstadt thus reimagined would have dictated the opposite outcome in Roe. Denying a general right to contraception surely would have foreclosed any claim that abortion should be a fundamental right. Eisenstadt's closest cousin, Carey v. Population Services International,(7) would also disappear. "If you want contraceptives," a state could insist, "visit a pharmacist." The Court would have to confess that Griswold must "be read as holding only that a State may not prohibit a married couple's use of contraceptives."(8) Reversing Eisenstadt, Roe, Carey: this is either a cultural conservative's lurid fantasy or a progressive's nightmare.
But Roe would hardly represent the Court's final word on the civil liberties of pregnant women. The next Term presented two opportunities to revisit the issue. Cleveland Board of Education v. LaFleur(9) invalidated a school board rule requiring mandatory leave for pregnant teachers. More pointedly, Geduldig v. Aiello(10) asked whether the equal protection clause prohibits discriminatory treatment of pregnancy. Pregnant persons are, surprised though Justice Stewart might have been to discover, invariably female.
Had a substantive due process theory of abortion failed in Roe, Geduldig would have given a creative and opportunistic Court the platform for protecting abortion rights as a matter of equal protection. …