Saturday, March 22, 2014
I just posted a paper to SSRN that will be of interest, I think, to some MOJ readers. The paper is available here. The abstract:
In this paper, I discuss the criminalization of abortion both as a human rights issue and, especially, as a constitutional issue.
Governments are free, insofar as internationally recognized human rights are concerned, not to ban abortion. The serious question, which I address in this paper, is whether governments are also free, insofar as international human rights are concerned, to ban abortion. In particular: Is it a violation of a woman’s human rights for a country to ban abortion? One of the world’s most important human rights NGOs—Human Rights Watch—has answered in the affirmative.
Whatever the answer to the preceding question, a different question remains, and it is one of the most perennially contested questions in American constitutional studies: Were the Abortion Cases correctly decided?
Of all the constitutional rulings by the Supreme Court since the end of the Second World War, none have been more persistently controversial than the Court’s rulings, in 1973, in the Abortion Cases: Roe v. Wade and Doe v. Bolton. In Roe, the Court invalidated a Texas law that banned all abortions except those necessary to save the life of the mother. The Georgia law at issue in Doe was more permissive; it exempted abortions necessary “because (1) a continuation of the pregnancy would endanger the life of the pregnant woman or would seriously and permanently injure her health; or (2) the fetus would very likely be born with a grave, permanent, and irremediable mental or physical defect; or (3) the pregnancy resulted from forcible or statutory rape.” Nonetheless, the Court invalidated the Georgia law. In 1992, four Supreme Court justices voted to overrule the Abortion Cases; a bare majority of the Court—five justices—refused to go along. In 2014, over forty years after the Court’s rulings in the Abortion Cases, four justices, given the opportunity, would almost certainly vote to overrule the Abortion Cases: Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito.
The conclusion I reach in this paper—that the Supreme Court’s ruling against the Texas law, but not its ruling against the Georgia law, was warranted—is, of course, controversial: Many insist that both rulings were warranted; many others, that neither ruling was warranted. Although controversial, the position at which I have arrived brings me into alignment—for me, comfortable alignment—with the position espoused by Justice Ruth Bader Ginsburg in 1985, when she was a judge of the United States Court of Appeals for the District of Columbia Circuit: In the Abortion Cases, then-Judge Ginsburg wrote, the Supreme Court should not have “gone beyond a ruling on the extreme [Texas] statute before the Court. . . . Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.”
This paper is one of a several connected papers that I have posted to SSRN in the last nine months, discussing “human rights in the constitutional law of the United States”—discussing, in particular, the implications of one or more constitutionally entrenched human rights for the divisive controversies over capital punishment, same-sex marriage, and, in this paper, abortion. A list of the papers is available here.