I've been thinking about the abortion issue a great deal lately, since the Texas legislature passed a new law effectively banning abortion after 6 weeks - a time when many women don't even know yet that they're pregnant - and the United States Supreme Court declined to intervene, instead opting to wait until a case is brought challenging the law that eventually works its way up to the Supreme Court. That, of course, could take many months, and during that time the Texas law stands, quite possibly emboldening other state legislatures to enact legislation plainly contrary to the Court's 1973 opinion in Roe v. Wade. The Court's decision not to intervene immediately clearly signals a willingness to reconsider Roe - and potentially reverse that decision rather than relying on the principle of stare decisis ("decision stands," i.e. honoring precedent).
Over the years since Roe my own thinking on the majority opinion and the underlying rationale has gone from finding it interesting, to questioning its premises and principles, to thinking that the case was wrongly decided - meaning not that the conclusion was wrong but that the reasoning was deeply flawed.
There are, I believe, two principles that can be used to arrive at the conclusion one finds in Roe: autonomy and privacy. I favor the former; the Court chose the latter, using its earlier decision in Griswold v. Connecticut as something of a foundation.
Justice William Douglas wrote the majority opinion in Griswold (1965), finding that the State's restrictions on access to contraception violated a right to privacy, notwithstanding that the word privacy appears nowhere in the Constitution.
As a physician who has devoted much attention to biomedical ethics over the past few decades, I naturally frame this question as an ethical dilemma. This means there are competing interests that must be weighed and valued against each other. One is the pregnant woman's autonomy, or right of self-determination, which means, in this instance, the right to control what happens to her body. The other is the interest of the State in protecting the life of the unborn child.
Individual autonomy is the ordering principle in the hierarchy of biomedical ethics in Western societies. This means that there must be a powerful State interest to override it. The State does, indeed, have a powerful interest in protecting a human life, and so a significant consideration - arguably the most important consideration - is when the developing fetus qualifies as a human life. In other words, when is it a person entitled to protection under the law? In Roe the Court did consider that question and opted to answer it in terms of fetal viability outside the uterus - a bit of a moving target, now somewhere in the range of 22-24 weeks as opposed to the end of the second trimester (26 weeks) that most people associated with Roe back in the '70s.
I like the ethical framework of competing interests, pitting against each other two ideas - a woman's autonomy and a State interest in protecting human life - that most people have no trouble understanding. Essential to resolving the ethical dilemma is a "national conversation" in which people discuss the competing interests, find the points of contention that cause them to differ, and try to forge consensus.
But the Court did not rely on the principle of autonomy, which certainly exists in both philosophy and common law, choosing instead to rely on privacy rights.
Where is that right in the Constitution? The flippant answer is "Nowhere," but of course that was not the answer posited by Justice Douglas. He argued that the guarantee in the Third Amendment against the quartering of soldiers in private homes in peacetime was a guarantee of a privacy right. He said the same about the Fourth Amendment's guarantee against unreasonable searches and seizures - the constitutional provision that means law enforcement officers need a search warrant under most circumstances.
Justice Douglas then relied on the notion that from specific guarantees in the Constitution can be said to "emanate" "penumbras," in which additional important and related rights can be discovered. Thus, from the Third and Fourth Amendments one can say that there emanate penumbras in which can be found a right to privacy, which can then be used to declare that a State may not unduly restrict access to contraception (Griswold) or abortion (Roe).
A penumbra can be thought of as an area between what is brightly illuminated and what remains in darkness near it - in a twilight zone, so to speak. In that dim ether one may find additional rights that emanate from the ones clearly stated in the bright light of the plain language of the document.
This idea is the basis for the other side of my reasoning in favor of autonomy as opposed to privacy. Far too many Americans think the idea of a constitutional right to privacy is nonsense: it just isn't there, and penumbral reasoning strikes them as a transparent fiction.
If we are going to achieve any sort of resolution of the ethical dilemma posed by abortion, we need a framework for the discussion that relies on principles on the existence of which we can agree. I see personal autonomy as such a principle. A constitutional right to privacy? An idea that relies on emanations and penumbras starts out in trouble and rapidly loses ground.
You may say we are a nation of neither ethicists nor constitutional scholars. I'm far more comfortable relying on the average American's ability to understand and navigate a discussion based on principles of ethics than I am hoping for understanding of, and agreement with, the premise used by Justice Douglas. Many Americans will be more drawn to the common sense declaration by Justice Hugo Black: "I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision."
