Justifying Abortion Could Lead To Legalizing Prostitution and Illegal Drugs…

Sundry thoughts on the Supreme Court’s abortion ruling

Illustration courtesy of María Elena (Mani) Hinojosa

Even though I’m pro-choice, the Roe decision had always seemed quite a stretch to me, given that the Constitution doesn’t say anything about abortion. After reading the Dobbs ruling in its entirety, I felt confirmed in this opinion and concluded that the Supreme Court was justified in overturning Roe — on purely legal grounds, that is, independently of my wish that the right to abortion be unambiguously enshrined in the Constitution.

But then I read the dissenting opinion, and I’m no longer convinced that the majority was correct. Writing for the minority, Justice Stephen Breyer makes a cogent case that the right to personal liberty in the Due Process Clause of the Fourteenth Amendment is broad enough to entail a right to abortion in the first months of pregnancy (before the third trimester). And he makes an even stronger argument as to why, in this particular case, the doctrine of respecting established precedent should have been a paramount consideration — a consideration blatantly and arbitrarily disregarded by the majority. Here the main point is that “…tens of millions of American women have relied, and continue to rely, on the right to choose. So under traditional stare decisis principles, the majority has no special justification for the harm it causes.” Further: “The abortion right is also embedded in the lives of women — shaping their expectations, influencing their choices about relationships and work, supporting (as all reproductive rights do) their social and economic equality.”

But what about prostitution and illicit drugs?

Representing the majority, Justice Samuel Alito wrote the following:

These attempts to justify abortion through appeals to a broader right to autonomy and to define one’s “concept of existence” prove too much. Casey, 505 U. S., at 851. Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like.

My first reaction upon reading that was, “So what”? And despite the dissenting opinion’s feeble attempt to refute Alito’s claim (which amounted to just this: “that is flat wrong. The Court’s precedents about bodily autonomy, sexual and familial relations, and procreation are all interwoven”), I think the claim is not unfounded. Indeed, whatever one may think of prostitution and drug use, it seems inconsistent to accept the rationale from the dissenting opinion for considering abortion a constitutional right and deny that it can equally apply to a right to prostitution and drug use.

Here’s a key point in the dissenting opinion explaining why the liberty protected by the Fourteenth Amendment includes the right to abortion:

[…] the Court has “vindicated [the] principle” over and over that […] “there is a realm of personal liberty which the government may not enter”

The Fourteenth Amendment can reasonably be interpreted that way, but then on what grounds would the following rights, for example, be excluded?

• Sex work between consenting adults
• Drug use
• Assisted suicide
• The sale of human organs

Many people are sure to find some of the above acts morally repugnant or unacceptably risky. I for one am not at all convinced that all drugs should be legal, nor do I see the prospect of decriminalizing the selling of organs without compunction, yet I don’t quite see why they shouldn’t be part of the “realm of personal liberty which the government may not enter”.

Interracial marriage

And what about interracial marriage and other rights not explicitly enumerated in the Constitution, such as the right to obtain contraceptives, to engage in same-sex intimate relationships, and to same-sex marriage? As it happens, the latter three rights, despite the assurances of the majority, don’t seem so secure anymore, given that conservative Justice Clarence Thomas stated in his concurring opinion that they should be reconsidered.

Just as the justification for defending Roe “could license fundamental rights to illicit drug use, prostitution, and the like”, the justification of the majority for overturning it could also apply to denying that there’s a constitutional right to interracial marriage, which would imply overturning the precedent of Loving v. Virginia — a minor obstacle, as the Court has just established that precedents can be of little consequence. So what would Justice Thomas and his white wife think of that?

Completely banning abortion violates the First Amendment

Another justification for considering abortion in the first months of pregnancy a constitutional right is that banning it from conception infringes on the First Amendment’s separation of church and state clause (the Establishment Clause).

Since hardly any irreligious person would argue that personhood begins at conception, any law banning abortion from conception ought to be characterized as a religious law, and should therefore be ruled unconstitutional on those grounds alone.

At any rate, what’s wrong with each state legislating abortion?

The problem with delegating decisions on what should be fundamental and inalienable rights to the states’ legislatures is that then such rights cease to be fundamental rights.

A key aspect of liberal democracies is that certain essential rights are protected from the whims of the majority of the moment, and the best way to secure them is to enshrine them in a constitution. Claiming that there’s nothing to worry about, as many “pro-lifers” do, since now the will of the people in each state will determine whether abortion is legal or not, ignores the necessity of protecting certain rights from the tyranny of the majority.

So ideally legal access to abortion would be added to the US Constitution as an explicit and unambiguous right, much along the lines that had been established in Roe, which recognized the legitimacy of the states’ interest in regulating abortion after the second trimester of pregnancy.

Barring a constitutional amendment (and unfortunately there’s zero chance today of passing an amendment protecting abortion) the rights of women are for the foreseeable future left in the hands of the state legislatures, many of whose members, driven by their Taliban-like fanaticism, are intent on taking away from women what had been for nearly half a century a constitutional right, thereby severely curtailing their liberty and self-determination. We can only hope that the people of those states will oppose any such legislation and vote out of office any members who favor it.