Reactions to Carhart, IV

Cass Sunstein:

IN THE LONG RUN, the most important part of the Supreme Court's ruling on "partial-birth" abortions may not be Justice Anthony M. Kennedy's opinion for the majority. It might well be Justice Ruth Bader Ginsburg's dissent, which attempts, for the first time in the court's history, to justify the right to abortion squarely in terms of women's equality rather than privacy. ... [S]he said that legal challenges to restrictions on abortion procedures "do not seek to vindicate some generalized notion of privacy; rather, they center on a woman's autonomy to determine her life's course, and thus to enjoy equal citizenship stature."

Those who have maintained that the court's abortion jurisprudence is a sham might be forgiven for guffawing.

Roe rested - so far as it rested on any law - on the right to privacy; the court was not particularly concerned where in the Constitution this general right existed or why it applied to abortion, and blithely concluded that the "right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or ... in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." Roe, 410 U.S. at 153. Nineteen years later, Casey's reboot of abortion law got a bit more specific: yes, the court said, the Constitution withdraws from the democratic process any question of regulating abortion, and this "Constitutional protection of the woman's decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment. ... The controlling word in the cases before us is 'liberty.'" Casey, 505 U.S. at 846.

Apparently neither of these rationales seem to be working out, so Justice Ginsburg wants to reboot the court's abortion jurisprudence yet again, with yet another rationale.

It has long been maintained by legal conservatives that whether abortion should be legal or illegal, the Supreme Court's caselaw mandating that it be legal is not driven by what the Constitution requires, but rather by the desire of at least five members of the court to prevent states from regulating abortion. To the instrumentalist, the more important point is not where the supposed Constitutional right to obtain an abortion springs from (the only way the court can effect its policy preference, and thus restrain the states, being to declare the subject off-limits by classifying it as a right); the point is that the Constitution must protect the right to abortion, somehow, somewhere. If it can't be grounded in one clause, what the hey, try another one for a while. Sooner or later something will stick. Any port in a storm, right?

Justice Ginsburg's attempt to reground the right a third time seems to confirm that the claim the Constitution protects abortion rights is a sham. The Ninth Amendment argument didn't work, so the court suggested privacy. Privacy seemed a little amorphous, so the court suggested substantive due process. And now Justice Ginsburg has apparently given up on substantive due process and suggests equal protection as the basis for this imagined restriction on state legislative capacity. This is a crazy way to do Constitutional law; it makes no sense at all unless the name of the game is to keep trying until you find something that supports your preconceived conclusion. To say that this turns inside out the way that constitutional or statutory construction is supposed to work is a brobdingnagian understatement.

Sunstein concludes with a rhetorical flourish: "[t]he equality argument has the support of four members of the court[.]" Wrong. Abortion rights have the support of four members of the court, and to borrow liberally from Prof. Althouse's phrase, like most supporters of legal abortion, they start out wanting the concrete thing: a constitutional right to obtain an abortion, which is disabling on the states. Then they develop (and if necessary, change) the ideas to support it.

Related:
Reactions to Carhart I, II, III, IV, V, VI
My take on Carhart
What's missing from Carhart? Ah, yes...
BREAKING - Carhart comes down, ban upheld.