On Friday, the Supreme Court completely abolished the federal constitutional right to an abortion, leaving the states free to ban abortions if they wish. That is likely to energize Democrats and give them a big boost in this fall’s election. The Supreme Court could have merely limited the right to get an abortion to abortions performed in the early stages of pregnancy. That would have been a popular decision. But instead, it completely abolished the right. If that antagonizes enough voters, the Democrats could eventually expand their control of Congress, which could enable them to abolish the filibuster and then expand the Supreme Court, packing it with liberal justices who will recognize a constitutional right to abortion on demand. As of a week ago, Republicans appeared likely to take control of the House of Representatives this fall. But Democrats were leading in key Senate races such as Pennsylvania, where a Republican senator is retiring, meaning they will keep control of the Senate if angry Democrats turn out in droves.
By a margin of 50-to-37%, voters oppose the Supreme Court’s decision Friday that the Constitution does not protect the right to an abortion. But most voters support banning virtually all abortions after 15 weeks.
The Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization upheld a state law that banned most abortions after 15 weeks. Mississippi’s Gestational Age Act provides that “[e]xcept in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform . . . or induce an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks.”
The Supreme Court could simply have upheld that law, limiting abortion rights to the early stages of pregnancy. That would have been a popular decision, and the Democrats would have looked extreme when they criticized it, costing them seats in Congress and state legislatures. In many countries, the right to an abortion doesn’t extend beyond 15 weeks, and covers only early stages of pregnancy, when the fetus has no brain activity, can’t feel pain, and in some cases, doesn’t even have a heartbeat. At the time America was founded, states allowed abortion before “quickening” — so there was no ban on abortion before the fourth month of pregnancy at the earliest.
Abortion is largely prohibited after 14 weeks in France, Germany, Denmark, Norway, Belgium, Austria, Hungary, Romania, Greece, and Spain. Many rights have to be exercised promptly, or not at all — which is why states can have filing deadlines for running for political office.
But instead, the Supreme Court went further, declaring that there is no constitutional right to an abortion at all, regardless of the stage of pregnancy. Chief Justice Roberts, in a concurring opinion joined by no other justice, urged the Court to simply uphold the Missippi law, without totally abolishing abortion rights. But the Court declined to act with judicial modesty, and instead, entirely overturned the Supreme Court’s 1973 ruling in Roe v. Wade, which created the constitutional right to an abortion.
It is true that the Constitution does not mention the right to an “abortion” or a right to “privacy.” But neither does it recognize other rights that are universally recognized by judges, such as the right to interstate travel. The Fourteenth Amendment does protect “liberty,” and there is at least a colorable argument that “liberty” includes the right to an abortion in the earliest stages of pregnancy, especially when the burden of carrying a pregnancy is unusually great, such as when the mother was raped or is carrying a child that is deformed and likely to live a life of great suffering. The founding fathers believed liberty encompassed some substantive due process rights, not merely the abolition of slavery or the recognition of only those rights specifically enumerated by the Constitution. Thus, it would have been better to avoid completely overturning Roe v. Wade, in light of the doctrine of stare decisis.
That does not mean the Supreme Court should have mechanically applied Roe v. Wade, either, though. Some of the Supreme Court’s past abortion decisions were problematic, even assuming the existence of abortion rights.
Prior to Friday’s decision, the right to an abortion was virtually unlimited, to an extreme, even in the latest stages of pregnancy. Effectively, abortion was a super-right, not just an ordinary constitutional right. In the third trimester, states could supposedly restrict abortion when it did not impact women’s health, according to the Supreme Court’s Roe v. Wade decision. But in reality, they really were not allowed to, because the Supreme Court, in its Doe v. Bolton decision issued the same day as Roe v. Wade, created the right to an abortion even in the last days of pregnancy, if preventing the abortion would impact a woman’s “emotional” health or “familial” situation. As Judge John Noonan and others have noted, this “emotional” or “familial” well-being exception effectively legalized abortion on demand in all nine months of a pregnancy.
But that made little sense, because even valid government regulations (and valid limits on constitutional rights) typically cause emotional distress to some people. For example, an obscenity law adversely affects the emotional health of people who are incarcerated for violating it, and adversely affects the familial well-being of their family, who can lose their home and business after the family breadwinner is incarcerated for obscenity and his business’s sexually-oriented merchandise is confiscated. But that does not render obscenity laws a violation of the First Amendment. Similarly, public employees can be fired for speech that is disruptive or is not on a matter of public concern, even if that bankrupts them, and causes them emotional and familial problems (like losing their family home when they can no longer pay their mortgage, and having their spouse leave them, as happened to a professor I once represented, whose wife left him after he was fired for his classroom speech, and a court upheld his dismissal). Similarly, sexual harassment laws require investigations of people who make recurrent unwelcome sexual advances to co-workers, but that does not make such laws unconstitutional — even though “such investigations foreseeably produce emotional distress — often in copious amounts — in alleged harassers, whether guilty or innocent, ” noted a federal appeals court in Malik v. Kramer. (Some overly broad sexual harassment regulations violate the First Amendment, by restricting debate about sexual issues, according to a federal appeals court in DeJohn v. Temple University (2008), but that has nothing to do with the fact that they cause people emotional distress).
The notion that there is a right to abortion in the third trimester of pregnancy would have shocked the framers of the Fourteenth Amendment. Late term abortions were not legal in any state at the time the Fourteenth Amendment was adopted. Clearly, they did not intend to create a right to abort in the final months of a pregnancy. I was born six weeks premature, well before the ninth month of pregnancy, and I was obviously a person who could feel pain and think in a rudimentary way. If the government can restrict rights explicitly mentioned in the constitution to save lives — like the First Amendment freedom of assembly, which can be restricted to prevent the transmission of a disease like COVID-19 — then obviously, abortion can be restricted to save the life of a third-trimester fetus, even if abortion is a constitutional right. The Supreme Court’s 1973 decision in Doe v. Bolton was wrong to prevent such lives from being saved.
First trimester abortions are quite different than late term abortions. In the first trimester, the embryo does not think and feels no pain when it is aborted. And it raises serious logical problems to claim that a newly fertilized egg has a soul from the moment of conception. A fertilized egg can later grow into not one, but two people — twins, each of whom has his own soul, clearly not dating all the way back to the moment of conception. The fertilized egg grows into a zygote which, after 5 days or so, sometimes subdivides into two zygotes, each of which implants itself into the uterine wall, resulting in twins.
I am an identical twin. I don’t share an identity, or a soul with my twin brother. We are two different people, and we have two different souls. Neither of which logically dates from the moment of conception, when we were a single fertilized egg. More likely, our souls date from the time our brains began meaningfully functioning in the womb, in the second trimester. Babies do not even have any brain cells until weeks into a pregnancy. And after brain cells start growing, the brain takes time to develop and begin functioning. In the first trimester of pregnancy, I was not sentient, any more than a flake of skin is. (With emerging technology, I could presumably clone myself using my skin cells. But that doesn’t make such a skin cell a person).