For several years I’ve argued that the Supreme Court, no matter what its political makeup, will not overturn Roe v. Wade, for these three reasons:
1. Advocates of reversal (i.e., let’s face it, Republicans) don’t actually want it overturned, because they get far too much political and fundraising mileage out of its continued viability, viz., from promising to get it overturned, than they could ever get by actually accomplishing that.
2. They also want/need to keep that option open for their wives, daughters and mistresses. (See yesterday’s excellent diary: “The Only Moral Abortion is My Abortion.”)
3. And this is the most important reason: The Court has never, in its history, not once, taken away a substantive individual liberty interest after recognizing it. It has refused to recognize new, un-enumerated substantive rights, and has effectively stopped doing so under the substantive-due-process doctrine, but it has never effectively decided that you, the American citizen, no longer have the right that you had yesterday.* For all the current Court majority’s flagrant disregard for precedent and stare decisis, it has yet to overturn or set aside a substantive-due-process precedent. No matter how badly the current Court majority wishes to impose the GOP’s regressive, oligarchical and theocratic agenda on the nation, I still doubt that Chief Justice Roberts wants his Court to go down in history as the one that started taking rights away from people.
[* — To be clear, we’re talking about rights against the state, i.e., things that the government can’t proscribe without either a compelling governmental interest and a narrowly-tailored law in the case of fundamental rights, or a rational basis in the case of other rights.]
The wild card in all this is the idea of “fetal personhood,” a purely philosophical concept that has no grounding in law or science but that a lot of people think would provide a loophole for the Court to avoid taking rights away from women and girls (or appearing to do so) by couching its decision as one recognizing and granting rights to zygotes, blastocysts, embryos and fœti. I don’t think that will happen either. Allow me to briefly explain why.
As noted above, “personhood” is a purely philosophical concept that lacks any grounding in law or science; the word “person” is repeatedly used, but not defined, in the text of the Constitution. I have neither the intention nor any need to get into a protracted philosophical discussion here about what a “person” (or a singular “life”) is or what makes a human being, a living creature, a fictional character, or anything else, a “person.” As with the word “marriage,” there’s really no need for a court to do that either.
Simply put, like the “definition of ‘marriage,’” there is no Constitutional basis for a court to “establish” “fetal personhood” judicially. That’s the kind of thing that a legislature would have to establish either by statute or by constitutional amendment. A statute, or a state constitutional amendment, defining the word “person” that way would be subject to judicial review. And a court would have to uphold that definition before it could even consider whether zygotes, blastocysts, embryos and/or fœti constitute a “class of persons” for equal-protection purposes, although that’s really a separate issue.
(Yes, I realize that I’m giving the current Court the benefit of the doubt that it won’t act lawlessly, but please bear with me.)
In any event, there are two firm, solid, textual arguments to be made against “fetal personhood” being a Constitutional requirement.
First, the text of the Constitution actually provides some guidance on this issue, in the 14th Amendment which makes birth a prerequisite to citizenship (“All persons born or naturalized… are citizens...” (emphasis added)). Here’s the full text of Section 1:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
By first making birth a prerequisite to both federal and state citizenship, then prohibiting the States from abridging the “privileges or immunities” of federal citizens, then proscribing the deprivation of any person’s life, liberty or property without due process of law, the text here very strongly suggests and implies that birth is a prerequisite to “personhood” as well as citizenship, and by extension, to the exercise or enjoyment of Constitutional rights.
Now, could it be read another way? Could the use of the word “person” in the due process clause as opposed to “citizen[]” in the privileges-and-immunities clause indicate that birth is only a prerequisite to citizenship and not “personhood”? I doubt that very much. The P&I clause (which has almost no practical application) has always been read to mean that the states can’t deny any U.S. citizen the benefits of federal citizenship, whereas the use of the word “person” in the latter clauses means the state can’t deny due process or equal protection to non-citizens either. Meaning, the word “person” there is meant to eliminate any distinction between citizens and non-citizens (and proscribe state action), not to distinguish personhood from citizenship.
More importantly, this is the only language in the Constitution that pertains in any way to this question, meaning the text itself strongly suggests that birth is a prerequisite to personhood and to the protection of its clauses (and its myriad other uses of the word “person”), and never suggests otherwise.
Second, and I’m going to try not to get too crass or graphic here, but again, please bear with me: if a zygote, embryo or fœtus (hereinafter, just “fœtus”)* is a “person” living inside, inseparable from and wholly dependent for its existence upon the body of the mother, then one of two things must be true: either the mother has autonomy over the fœtus, or the fœtus has autonomy over the mother. There really is no way around that. And if the law decides that the fœtus has autonomy over the mother, then by necessity the state becomes its proxy and, thus, the state has autonomy over the mother.
[* — I beg the reader’s indulgence; I just prefer the Latin spelling.]
The 13th Amendment is rarely invoked in Constitutional Law; there’s very little case law on the subject, and in fact most Bar exam review courses tell law students that it’ll never be tested. (Although, when I took the California Bar, it was.) Here’s the text:
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Again, I don’t mean to be hyperbolic, but as a practical matter, “fetal personhood” in law necessarily means that either the fœtus is a slave to the mother, or the mother is a slave to the fœtus with the state as its proxy. If, on the one hand, slavery cannot “exist within the United States,” then the law cannot recognize or establish “fetal personhood,” irrespective of who becomes a slave to whom.
If, on the other hand, the law has to choose between one of the foregoing forms of slavery and the other, then the option required by the Constitution should be obvious. The Constitution cannot require women and girls to be subjugated by the state in such manner, even if it must allow fœtal “persons” to be subjugated by their mothers without state interference. Thus, if a state amended its constitution to define the word “person” in its laws as including “unborn children” (or any of the scientific/medical terms designating same), it would probably be unconstitutional (i.e., violative of the federal Constitution).
There’s no question that these are grim times for women and girls in Alabama, Georgia, Louisiana, Ohio, and elsewhere, and the threat to reproductive freedom is very, very real. I don’t mean to deny, diminish or minimize that threat. Maybe I’m wrong about what the current Court might be willing to do. Maybe it will punt on the issue in a novel or unforeseen way, the way it did in the Cake Jesus case, and just let the states keep meddling with women’s rights until they get it right. But if even the current Court acts according to the law, the Constitution, and the principles that have always guided its jurisprudence, then it’s possible that Roe might be safe after all.