Monday, 27 August 2012

Reproductive Rights, Part II: Stay Out of My Uterus

Posted 8/27/12 by Law Nerd.

(tl;dr summary for our philistine readers: see title--constitution/SCOTUS says)

My apologies to any readers who for some bizarre reason were looking forward to another of my legal rants after my last. I graduated, then studied and sat for the Vermont bar exam, and I offer no further excuse above that. I have sprouted knobbly little legal wings, and hope to be a fledgling attorney in a few months. Results are out in September.  Job as "not-yet-licensed junior associate to whom all your difficult cases are belong" begins in one week.

Unless you've been living under a bridge and growing troll-like protuberances, you've heard of Rep. Todd Akin's (R-MO) recent shenanigans in the world of reproductive rights.  Specifically, I refer to Rep. Akins' "misogynist claptrap," in which the Senate-hopeful attempted to distinguish legitimate rape (from what I know not, though we did later learn that he actually meant "forcible rape," phew!) while invoking the vagina's alleged power to cut that bad old rape pregnancy off at the pass.  Because, you know, they can do that.



This moment of interviewee's honesty has earned Akins, and the abortion issue, quite a bit of media attention (if you are curious about the pseudo-scientific basis "supporting" Akin's comments, and are living in 2012 as opposed to the 14th century, go here).  Then again, the Chick Fil-A debacle also earned a confusing amount of media coverage and general uproar.  Man, I love a good election year!  The palpable excitement has even inspired a special offer by a Tampa Bay area gay bathhouse, anticipating a powerful influx of sexually-repressed RNC delegates this week.


Having spent my waking hours eating, breathing, and excreting law for the past three years, I have in that time fallen out of tune with the larger political portrait of this country, though I was tangentially aware of the major issues during that time thanks to NPR and a two-hour daily commute.  Imagine my surprise when I awoke after the Bar to realize that the sun has indeed been shining this entire time on a country that is quickly unraveling itself in a storm of bitter and childish partisanship.  Despite the fact that Roe v. Wade turns 40 years old next year, the question of when, how, and whether a woman may assert personal control over her ladyparts is still being tossed around as if the contours of female reproductive rights are not yet defined.

One of the more recent attempts to assert legal control over a woman's ability to conceive as she sees fit is the RNC's alleged proposal for a constitutional "human life amendment."  According to CNN, who claims to have obtained draft language of the RNC's anti-abortion platform, the amendment would criminalize all abortions, regardless of the threat to the mother, or the circumstances of the child's conception.  That's right, ladies: if the 'Pubs get their way, you're carrying that fetus to term even if it kills you, you were raped at gunpoint, or your babydaddy is also your daddy.


I trust that our readers are intelligent enough to see the humanity of allowing a woman to abort a fetus under such circumstances, let alone the wisdom of leaving the decision to the mother.  However, I imagine that most of you are unaware of the constitutional provisions underlying these rights.  So get ready for a rip-roaring venture into Roe v. Wade and the umbrella of privacy rights under our founding social contract.

In 1970, Jane Roe, a Texas resident, wanted to terminate an unwanted pregnancy.  Under Texas law at the time, a woman attempting to procure a medical abortion, or a physician attempting to provide one, was subject to criminal sanctions unless carrying the fetus to term would kill the mother.

Side Note: In the event our readers do not understand the significance of "medical abortion," prior to Roe v. Wade a woman wishing to end a pregnancy in states that forbade it had little choice but to seek an illegal abortion or resort to savage methods, including thrusting a coat hanger into her uterus.  Thus the reason why the coat hanger has become a symbol of freedom of choice.
Roe sued Henry Wade, the District Attorney of Dallas County, claiming that she wanted to obtain a medical abortion, her life was not at risk thus she could not procure one in Texas, and she could not afford to travel to another state to get one.  So she asked the federal district court for a judgment order declaring that the Texas abortion law was unconstitutional, and preventing the law from being enforced in her case.

As so often happens in a case that has the potential to impact the rights of many, Roe's suit turned into a festival of joinder.  The case acquired as plaintiffs: a doctor, James Hallford, who had been arrested for violating the abortion law; and a childless couple, going by Mr. and Mrs. Doe, seeking to avoid pregnancy and the effects of birth control pills as recommended by the wife's neurologist.

The constitutional basis for the lawsuit reads like the syllabus of a second semester con law class.  Plaintiffs claimed the Texas law violated:

  • the First Amendment (freedom of speech, religion, and press);
  • the Fourth Amendment (freedom from unreasonable searches and seizures);
  • the Fifth Amendment (federal Due Process Clause, and freedom from compelled self-incrimination, i.e., "taking the fifth");
  • the Ninth Amendment (constitutional interpretation in conflicts with individual liberties, more on this later); and
  • the Fourteenth Amendment (state Due Process Clause, citizenship rights, and the Equal Protection Clause).

In 1965, the SCOTUS decided Griswold v. Connecticut, a case that nestles firmly into the chunky foundation of reproductive rights.  In Griswold, the Court concluded that the above amendments, plus the Third (quartering soldiers), combine into a magical soup called the "right to privacy."  This, of course, means that there is no right to privacy under the constitution as written.  Griswold itself involved the right of married couples (and then unmarried individuals in the 1972 case of Eisenstadt v. Baird) to be free of government restrictions on the use of contraceptives.  For your viewing pleasure, I provide for you an example of the sheets betwixt which the government may not enter following these decisions.



The Court's opinion in Roe ultimately concludes, as you know, that a woman has a fundamental right to obtain a medical abortion up to a certain point in the pregnancy.  Couched in more precise terms under the SCOTUS' precedence, Roe held that the constitution protects a woman's right to be free from government interference with her choice to terminate a pregnancy until the fetus is "viable," at about six months.

The SCOTUS took roughly 54 pages to get to its conclusion.  In my next installment, I will touch upon the Court's reasoning in greater depth.  You can easily read a recap on wikipedia, or can read the entire opinion yourself at FindLaw (great website for free legal research, by the way).  For today's installment, I wanted to highlight a few points that stood out to me.

First, the Court in '73 seemed palpably aware of the potential its decision had to eff with the country's emotional common ground for years to come.  The opinion opens with a rare, and eloquent, disclaimer by the author, Justice Blackmun:
We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One's philosophy, one's experiences, one's exposure to the raw edges of human existence, one's religious training, one's attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one's thinking and conclusions about abortion.
In addition, population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem.
Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection. We seek earnestly to do this. . . .
At the end of his introduction, Justice Blackmun defensively quotes a passage from the landmark case Lochner v. New York (decided in 1905): 
    [The Constitution] is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.
Poignant and honest, coming from a life-tenured countermajoritarian institution in which "activist judge" translates to "naturally-flawed human being with whom you disagree."

Second, the inclusion of the Ninth Amendment under the umbrella of privacy rights fascinates me, as an unabashed con law nerd, because of its underutilized but seemingly powerful history.  The Ninth Amendment reads: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."  If you are at all familiar with state's rights(!), you might scratch your head and say, "gee, Cletus, that sounds an awful lot like the Tenth Amendment!"  The Tenth reads: "The powers not delegated to the United States, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

The Ninth has a rather more tawdry history than the Tenth.  To date, there have been very few cases translating this particular piece of our social contract.  The SCOTUS has historically described it as a "construction amendment," meaning it was intended as an instruction manual for how to interpret a government action that appears to intrude on the fundamental rights of the people (free speech, and all those tasty individual liberties in the Bill of Rights, the first ten amendments).

But, as the SCOTUS explained in U.S. Public Workers v. Mitchell, if the government (Congress, really) passes a law under one of its "enumerated powers," those laid out in the Constitution such as the power to regulate commerce, then there has been no violation of any "rights" reserved under the Ninth to the people or "powers" reserved under the Tenth to the states.  But if Congress passes a law outside of its enumerated powers, the Ninth and Tenth sally forth disguised as the protectors of the federalist system, and any intrusion on individual or state rights is assumed to be unconstitutional.

A translation pertaining to the Akin controversy: unless there's a hitherto unknown "Patriarchy Knows Best When It Comes To The Unwanted Unborn Clause," if the Constitution says you have a right, or the SCOTUS says the Constitution says you have a right, to make your own damn reproductive choices (including whether or not to bring a fetus to term), then the government may not pass or enforce a law interfering with those decisions.  This, of course, is why the RNC proposes to amend the Constitution to include just such a clause; without amending our founding document, or convincing the SCOTUS otherwise, they have to stay out of womankind's uteri for the first six months of pregnancy.


In conclusion, I present to you this adorable picture of four confused gerbils posing for the cover of Caffeinated Rodents Monthly.



Thanks for your attention, folks.  Stay tuned for the next installment--Reproductive Rights, Part III: No Fanny?  No Fuss.

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