The Future of Abortion

1.

On July 3 the Supreme Court decided Webster v. Missouri Reproduction Services, the abortion case that had been the subject of unprecedented political campaigns, demonstrations, and public debate for months.¹ By a five-to-four vote, the Court left standing every provision of the Missouri statute restricting abortion that had been brought before it, reversing lower federal courts which had declared these provisions unconstitutional.

The most important of the Missouri provisions prohibits abortion altogether in any “public facility,” defined very broadly to include “any public institution, public facility, public equipment, or any physical asset owned, leased, or controlled by this state or any agency or political subdivision thereof.” Since the statute forbids abortion in any such facility even when paid for privately and performed by a private doctor, the effect will be to deny abortions to many women too poor or otherwise unable to find a doctor and hospital with no state connections.² That is a serious and discriminatory constraint, which other states can now be expected to copy.

Nevertheless the Court’s decision did not go as far in restricting women’s rights to have an abortion as anti-abortion groups had hoped it would. The state of Missouri and the Bush administration had both invited the Court to take the opportunity to overrule Roe v. Wade, the famous and much criticized 1973 Supreme Court decision which struck down a Texas statute that prohibited abortion at any time except to save the mother’s life. The Court said then that states cannot prohibit abortion, except to protect the mother, before the third trimester of pregnancy. The main opinion in Webster, written by Chief Justice Rehnquist, said that the Court was not overruling Roe v. Wade, because it was not deciding that states could make abortion criminal even in early pregnancy. But the opinion also said that the Court was abandoning the “rigid trimester structure” of Roe, which prohibited any regulation of abortion before the third trimester except in the mother’s interests.

The opinion left open the possibility that the Court would overrule Roe completely in a future case, and in effect it invited other states to enact even more restrictive legislation than Missouri had. State politics have been dominated by the abortion issue since the decision was announced.

Rehnquist’s opinion was supported in full by only two other justices—White and Kennedy. Since Justices Scalia and O’Connor agreed with the Rehnquist group that the Missouri provisions restricting abortion were constitutional, the decision to reverse the lower courts was a majority decision and therefore the decision of the Court as a whole. But Scalia and O’Connor each rejected important parts of Rehnquist’s opinion, and four justices, joining or supporting a fierce and persuasive opinion by Justice Blackmun, dissented from almost all of it. So the opinion represents the full views of only three justices, and it is wrong to assert, as many commentators have, that its remarks about Roe v. Wade have already changed constitutional law. Nevertheless the opinion must be studied carefully because it suggests how a crucial group of justices will vote in later cases, not just about abortion but also about other individual liberties the Supreme Court has protected from majority interference in recent decades.

Justice Scalia, in an indignant concurring opinion, said that it was irresponsible of the Court not to overrule Roe v. Wade outright. He said that Rehnquist’s approach left states in doubt about their rights, and left the Court subject to continuing and unseemly political pressure. Justice O’Connor, on the contrary, criticized the Rehnquist opinion for saying too much rather than too little about Roe. She said that Rehnquist had simply invented a false conflict between the Missouri statute and the Roe v. Wade trimester structure, and she cited ample authority, including statements from earlier opinions by Rehnquist himself, that the Supreme Court should not pronounce on issues of constitutional law not raised by the case before it. “When the constitutional invalidity of a State’s abortion statute actually turns on the constitutional validity of Roe v. Wade,” she said, “there will be time enough to examine Roe. And to do so carefully.”³

O’Connor was plainly right.⁴ Rehnquist claimed only that one section of the Missouri statute was inconsistent with the theory of Roe v. Wade: section 188.029, which requires doctors, before performing an abortion on any woman they have reason to think is twenty or more weeks pregnant, to determine whether the fetus is viable by performing “such medical examinations and tests as are necessary to make a finding of [its] gestational age, weight, and lung maturity.”

Lower federal courts had held this clause unconstitutional on the ground that it required expensive and sometimes dangerous tests even when there would be no medical point in performing them. If that were the correct interpretation, the clause would be unconstitutional because irrational, quite apart from Roe v. Wade. But Rehnquist saved the clause by interpreting it in a different way: he said that in spite of its apparently imperative language it should be read as requiring only those tests that a “careful and prudent” doctor would use in the circumstances.⁵ Then he said that since the statute required doctors to perform such tests even when they had reason to think a fetus had reached only twenty weeks, it violated the strict structure of Roe v. Wade, because if the fetus did turn out to be only twenty weeks of age the state, by requiring tests, would have intervened in a second-trimester abortion, which Roe does not permit.

That is a stunningly bad argument. Rehnquist himself quoted the lower court’s findings that “the medical evidence is uncontradicted that a 20-week fetus is not viable,” and that “23 1/2 to 24 weeks gestation is the earliest point in pregnancy where a reasonable possibility of viability exists.” But he added that the lower court “also found that there may be a 4-week error in estimating gestational age…[and the possibility of such an error] supports testing [when doctors have reason to think the fetus is twenty weeks old].” If so, then, contrary to Rehnquist’s argument, Missouri’s medical requirement can be assigned a purpose wholly consistent with the trimester structure; indeed it must be assigned that purpose in order not to be thought irrational. It attempts to insure that doctors do not carelessly abort viable fetuses. Briefs filed by both an anti-abortion medical group and the American Medical Association pointed out that noninvasive and relatively inexpensive tests, like ultrasound examinations, can confirm a doctor’s judgment that a fetus has not reached twenty-four weeks, and so allow him to make all the other findings the statute requires by inference. If his judgment is confirmed, he is free to abort with no further tests. If it is not, then the fetus is viable, and Missouri may prohibit the abortion under the Roe v. Wade structure.

Roe v. Wade recognizes that the states have a “compelling” interest in preventing the abortion of viable fetuses, and it therefore permits a state to adopt reasonable regulations to insure that viable fetuses are not aborted negligently. A requirement that doctors perform whatever tests a careful and prudent doctor would perform to insure that a fetus is not viable is plainly a reasonable regulation to that end. Justice Blackmun, who wrote the opinion in Roe v. Wade, said on behalf of himself and Justices Brennan and Marshall that if section 188.029 were interpreted as Rehnquist did it would plainly be constitutional under the trimester structure, and Justice Stevens, in his separate dissent, agreed. Even the brief for Missouri Reproduction Services, the plaintiff that had challenged the statute, itself conceded that point. It argued that the interpretation Rehnquist ultimately adopted was implausible, but it said that if that interpretation were adopted it would no longer have any constitutional objection to the clause.

So Rehnquist offered his bad argument in an effort not to reconcile his decision with judicial precedent, as judges often do, but to show that his decision was inconsistent with precedent, which is extraordinary. The conclusion is irresistible that he had determined in advance somehow to damage Roe v. Wade without explicitly overruling it, and the crucial question, for those concerned with the future of constitutional law and individual rights, is why he did so. Scalia hinted at a depressing explanation in his bitter prediction that Rehnquist’s opinion would be hailed as a “triumph of judicial statesmanship.” It is possible that Rehnquist hoped to satisfy as many of the parties in the abortion debate as possible by saying both that the Court was leaving Roe v. Wade “undisturbed,” and that it was abandoning the fundamental logic of that case, ignoring the contradiction.

Blackmun’s angry but powerful dissent suggests a different explanation, Machiavellian rather than Solomonic: that Rehnquist, White, and Kennedy do intend eventually to overrule Roe altogether, and leave women with no constitutional rights to an abortion at all, but that they intend to do so not directly and in plain terms, having to confront strong arguments and strong contrary public opinion, but indirectly and in stages. Blackmun may be right. ⁶

Some commentators find evidence for a more favorable interpretation of the Rehnquist opinion, however.⁷ They suggest that Rehnquist and his colleagues may have attacked Roe v. Wade’s structure to prepare the way for substituting, in future cases, a new set of principles that would adjust the rights of the state and individual women somewhat differently: to give states greater power to regulate abortion than they have under Roe’s trimester doctrine, and yet confirm that a woman has some constitutional right to make her own decision whether to continue an unwanted pregnancy, even though it is a more limited right than Roe recognized.

Is there evidence in Rehnquist’s opinion that he and the justices who joined him intend to allow women some limited right to an abortion? He said that he and they regard abortion as a “liberty interest protected by the due process clause,” and that any difference between that description and saying that women have a fundamental right to an abortion would be “abstract.” That does seem to suggest at least some constitutional protection for a woman’s right to choose. But other lawyers fear exactly the opposite: that the terminological shift from the language of protected rights to the language of liberty interests, far from being academic, means that the Rehnquist group will in the end accept no significant limits on the state’s power to regulate or even forbid abortion.

We must notice a point of constitutional practice in order to understand that fear. The Supreme Court has distinguished between two tests it uses to decide whether a state has the constitutional power to limit the liberty of individuals in order to pursue some collective policy or objective. The first is the “compelling interest” test which it used in Roe v. Wade and in other cases when important personal liberties were at stake, and which permits liberty to be abridged only when necessary to protect some important state interest, in this case in preventing the abortion of viable fetuses.

The second is the much weaker “rational relationship” test it has used in judging economic legislation, which requires only that the state’s policy be “valid” or “legitimate” and that there be some rational connection between abridging liberty and advancing that policy. In practice, state legislation almost always passes the weak rational relationship test, because almost any statute can be shown to be related to some goal a state is allowed to pursue. But legislation curtailing liberty almost never passes the “compelling interest” test, because some less restrictive means can invariably be found that would have adequately served any essential state policy. Prohibiting unpopular political protests might well make it easier for the state to maintain law and order in the streets, for example, but that would not justify a prohibition because political protests are protected by the compelling interest test, and less drastic means of preventing riots are available. So in practice, constitutional cases are decided not after choosing between the two standards, but by choosing between them. (The Court has sometimes adopted an intermediate test more demanding than the rational relationship test but less demanding than the compelling interest test. It has done so in gender discrimination cases, for example.)

Rehnquist’s description of abortion as a “liberty interest” suggests that he means to switch to the weaker test in deciding future abortion cases because it echoes his original dissent in Roe v. Wade. ⁸ He also said, in that dissent, that abortion is a liberty interest protected by the due process clause, and then added:

But that liberty is not guaranteed absolutely against deprivation, only against deprivation without due process of law. The test traditionally applied in the area of social and economic legislation is whether or not a law such as that challenged has a rational relation to a valid state objective…. If the Texas statute were to prohibit an abortion even where the mother’s life is in jeopardy, I have little doubt that such a statute would lack a rational relation to a valid state objective under the [rational relation] test stated [above]. But the Court’s sweeping invalidation of any restrictions on abortion during the first trimester is impossible to justify under that standard.

Even if the Court does switch to the weaker, rational relationship test in some future abortion cases, however, that will not necessarily mean that women will receive no constitutional protection. For if a justice accepts that test, his opinions about which state objectives are valid in regulating abortion may very well already embody some recognition of rights that will therefore survive that test. Rehnquist’s declaration that a statute forbidding abortion even when the mother’s life was in danger would lack a rational relation to a valid objective illustrates the point. If we define a state’s valid objective simply as protecting the lives of all fetuses, then it cannot be denied that prohibiting abortion, even when necessary to save the mother, bears a rational relationship to that goal. Rehnquist’s conclusion follows only if he defines the state’s legitimate interest in a narrower way, as an interest in protecting not all fetuses but at most only those that can be protected without endangering the mother’s life.

Of course once the state’s interest is stated that way, then the conclusion that a woman has a right to an abortion needed to save her life follows immediately. That is not because the rational relationship test supports or justifies that right, however, but only because the right is then artificially built into the test in advance, as an assumption that in effect makes the rational relationship test somewhat more like the compelling interest one.⁹ So even if a majority of the Court says it is shifting to the weak rational relationship test in abortion cases, they can still recognize significant abortion rights, beyond the right of a woman to save her own life, if they define a state’s legitimate interests in a way that already presupposes those further rights.

It is therefore important to consider whether Rehnquist’s opinion suggests that he, White, and Kennedy might be prepared to define a state’s proper interests in that way, and we should begin by noticing remarks that might indicate otherwise. The entire Court is agreed that at some stage in pregnancy the state has what in Roe v. Wade it called a legitimate interest in protecting “potential human life.” That often repeated claim is ambiguous, however, because it does not indicate the character of that interest. In Roe, the Court said that the interest became compelling only after viability. Rehnquist’s Webster opinion challenged that thesis. “We do not see why,” he said, “the State’s interest in protecting potential human life should come into existence only at the point of viability, and that there should therefore be a rigid line allowing state regulation after viability but prohibiting it before viability.” He quoted White’s remark in an earlier case that “the State’s interest, if compelling after viability, is equally compelling before viability.”

These remarks might indicate that Rehnquist and the others have a view of the state’s interest in political life that would mean the end of any significant right of women to control their own pregnancies: that the state has a legitimate interest in preventing the destruction of any fertilized ovum except when necessary to save the mother’s life. If a state may properly seek that goal then, according to the rational relationship test, it may prohibit abortion at any stage of pregnancy, because total prohibition is a reasonable, indeed necessary, means of preventing a fetus’s destruction.¹⁰ If a majority of the Court accepted that analysis in a future case, states would be free to return to the pre-Roe era: a woman too poor to travel to another state where abortion is legal would have only the miserable choice between an illegal and unsafe abortion and an unwanted child that might ruin her life.

Nevertheless, in spite of the evident danger that Rehnquist and his colleagues do have this chilling view of a state’s legitimate interests in mind, his opinion leaves some room for them to construct a narrower account of those interests that would permit them to recognize important abortion rights. They might accept that a state has a legitimate interest only in protecting the fetus by means that do not deny women a genuine opportunity to terminate a pregnancy, and that therefore a state may not forbid abortion altogether before viability or, perhaps, before some other stage of pregnancy late enough to allow a woman a reasonable chance to make that decision. That would, after all, be only an extension—though a very significant one—of Rehnquist’s artificial restriction of a state’s interest to cases in which a mother’s life is not at stake.¹¹ Moreover, since only 0.5 percent of the approximately 1.6 million annual abortions now take place after twenty weeks, and only 3.7 percent after sixteen weeks, and since many of these very late abortions are medical emergencies, Rehnquist and the others could allow total prohibition of almost all abortions substantially earlier than Roe v. Wade does without much changing the practical impact of that decision.

But they would then insist that a state has other legitimate concerns that are equally valid throughout a whole pregnancy. They might argue, for example, that a state has a proper interest in protecting the mother’s health even during an early abortion, and therefore that a state can adopt medical regulations made in good faith at any point in pregnancy, contrary to Roe, which forbids such regulations before the second trimester. (Rehnquist’s remark in his Roe dissent that the due process clause would not justify “sweeping invalidation of any restrictions on abortion during the first trimester” would be consistent with that view.)

Or they might argue that a state has a legitimate interest in insuring that every woman considering an abortion at any stage of pregnancy understands the moral gravity of that decision, its impact on others beyond herself, and the range of the reasons her parents, the father, and the community as a whole might have for opposing it. It might follow from that view, based on the rational relationship test, that though a state may not prohibit abortion altogether before some advanced stage of pregnancy, it may insist on mandatory waiting periods, or require doctors to provide women seeking an abortion with material setting out arguments against it, or on an absolute requirement of parental consent in the case of even mature teen-aged women, for example, all of which were declared unconstitutional in Supreme Court decisions following Roe v. Wade and citing its authority.¹²

I do not mean that overruling these decisions would be sound or desirable. Though some of the post-Roe cases might have gone too far, any regulation that significantly increases the risk that a woman will be denied a fair opportunity to control her own reproductive life, as mandatory waiting periods or a requirement of parental consent might do, is in my view inconsistent with the best interpretation of what the Constitution requires. Nor am I predicting that Rehnquist, White, and Kennedy will adopt the comparatively moderate view of a state’s legitimate interests I just described rather than the extreme view that would allow states to forbid abortion altogether, except in cases of medical emergency. Rehnquist’s opinion is for the most part not a sustained argument but a string of unexplored and ambiguous assertions that offer little basis for confident prediction.¹³ (Perhaps divisions among the three justices for whom it spoke made a less opaque opinion impossible.) I mean only that the relatively moderate approach is perfectly consistent, so far as I can tell, with what that opinion actually says.

In any case, the Court’s next term will provide more than enough opportunity for these justices to clarify their intentions. The Court has agreed to hear three new abortion cases. One raises the question, among other very serious issues, whether a state may require a teen-age woman to notify both parents before an abortion, even when the parents are divorced and one of them lives in a distant city and has no responsibility for her, without allowing a judge or some other official to exempt her from that requirement when exemption would be in her best interests.¹⁴ An absolute requirement that a parent who has neither interest nor responsibility nor connection be notified in advance does not seem rationally related to any proper interest a state has in protecting minors or promoting family integrity or insuring that a teen-ager is properly informed of the moral gravity of and alternatives to abortion. If Rehnquist, White, and Kennedy accept Minnesota’s claim that it has the power to insist on that requirement, they will have embraced a particularly feeble version of a feeble standard.

Another of the new cases may be even more revealing. It tests Illinois’s statute requiring clinics that provide abortion only in the first trimester to meet expensive operating room, equipment, space, personnel, and other medical standards that the lower court found to have absolutely no medical justification.¹⁵ Satisfying these requirements would increase the cost of early abortions and make it impossible for many private abortion clinics to continue to function. Since the Webster decision holds that states may forbid abortion in any public hospital or facility, upholding the Illinois statute would have the same effect, for many women, as denying them any right even to an early abortion. The statute cannot be sustained as rationally related to any goal except the goal of in effect overruling Roe v. Wade in Illinois. If the three justices vote to sustain it, they will have confirmed Blackmun’s view of their motives in Webster.

2.

“The goal of constitutional adjudication,” Rehnquist said, summing up, “is to hold true the balance between that which the Constitution puts beyond the reach of the democratic process and that which it does not. We think we have done that today.” His remark was unhelpful as an explanation of his opinion, because he had not said where that balance should be struck, except that Roe v. Wade had struck it in the wrong way. But the remark nevertheless reminds us of the claim justices who want to overturn established constitutional rights often make: that their decisions will make America more democratic because they will return power to the people. They believe that constraints on majority will are inherently undemocratic, and that a view of the Constitution that shrinks those constraints is therefore a more democratic one.

They offer, however, no arguments of either jurisprudence or history, but only question-begging assertions, for their claim that the Constitution supports their view about the right balance between democratic power and constitutional constraint. And their assumption that the Constitution is only a list of a few discrete checks on ordinary politics was rejected by the original authors of the Constitution, whose opinions they claim to make decisive.¹⁶ But the immediate aftermath of the Webster decision raises the question whether the new Court’s recent decisions decreasing constitutional protection for individuals have even the benefit its authors claim, whether they really are making America more democratic.

Different aspects or conceptions of the democratic ideal have different consequences for the division of power between legislatures and courts; a decision that makes a community more democratic on one conception, because it increases the power of officials who are elected by a majority or plurality of voters, may make it less democratic on another, because, for example, it decreases the efficiency of the political process as a means for revealing and executing the popular will. The sudden dominance of the abortion issue in state politics and elections in all regions of the country has driven crucial economic and social issues from the political agenda. Fundamentalists and other anti-abortion groups, accepting the Court’s invitation, are already preparing a variety of new restrictive laws to place before state legislatures across the country, laws they hope will pass whatever standards the Court finally announces.¹⁷ These groups are dedicated and effective single-issue minorities who in many parts of the country can destroy politicians they single out for attack, not because their views are so popular but because most voters are concerned with a variety of issues and are unwilling to allow their politics to be governed by only one.

The Court’s decision has therefore forced groups concerned with the rights of women to counterattack with single-issue politics of their own, hoping to persuade women generally that they too must concentrate their political interests exclusively on the abortion issue. The counterattack will fail in some states, succeed in others, and force anti-abortion groups to settle for marginal new constraints on abortion in the rest. It is not clear that Republicans will gain politically from President Bush’s clumsy attempt to make the issue one of party politics; many commentators think it will hurt his party not only in selected states but nationally, because most women who have grown up since Roe v. Wade are outraged at his assault on a right they have taken for granted, and believe crucial to women’s social and financial independence.

But in any case American democracy will be made poorer by the corruption of single-issue politics. Political decisions will be less sensitive to the complexities of the popular will, because ordinary voters are in a worse, not better, position to express their convictions and preferences across the range of political issues when politicians are forced to treat one issue as the only one that counts. ¹⁸ Of course I do not mean that the Supreme Court should remove any issue from ordinary politics that it believes is receiving disproportionate attention or is in some other way preventing democracy from working well. I mean only that if the Court has good constitutional reasons for denying majorities the power to limit some personal liberty, that decision may also advance rather than defeat democratic values.

The question whether cutting down constitutional protection promotes democracy raises an even more fundamental and important issue, moreover. Since the Enlightenment political philosophers have debated the merits of two rival views about what democracy—government by the people rather than some electoral aristocracy—really is. The first is a majoritarian conception: that a majority of voters should always have the power to do anything it thinks right or in its own interests. The second is communal: it insists that democracy is government of, by, and for not the majority but the people as a whole. The communal conception of democracy requires that each citizen have not only an equal part in government but an equal place in its concern and respect. Democracy, on that conception, is not undermined by but requires a system of individual rights guaranteeing the integrity of each person’s basic interests and needs. On this view, majority tyranny is not just a possible vice of democracy, but a denial of it.

A radical attack on established constitutional rights would indeed promote the first, majoritarian conception of democracy. But it would do so at the expense of the second, communal conception, and it is the second that America chose at its birth and that a majority of citizens want to retain. The first polls indicate that most Americans think the Webster decision was wrong, and Judge Bork’s surprising unpopularity, during his unsuccessful Supreme Court nomination battle in 1986, suggests that few Americans accept his view that day-to-day majoritarian politics is the best instrument for deciding when the majority should let individual people alone.

François Furet said recently, in a bicentennial lecture on the French Revolution, that the most important development in democratic theory since World War II was the continuing change, not only in Europe but in democracies across the world, from a majoritarian to a communal democratic system, in which the basic rights of men and women are adjudicated by judges under an abstract written constitution.¹⁹ He rightly credited that most important development to the ideas of the American rather than the French Revolution. Of course if the justices who reject Roe v. Wade are right that the Constitution, properly interpreted, gives women less substantial rights to control their own lives than the Supreme Court had previously recognized, then these reflections about the nature of democracy offer no argument to the contrary. But it is no argument for their view, or for other recent and troubling Supreme Court decisions, that deference to temporary majorities on matters of individual rights makes America more democratic. The version of democracy these decisions serve is brutal and alien, and many other nations with firm democratic traditions now reject it as fake. They cite our leadership and inspiration, and it would be a historic shame if we begin now to abandon our most distinctive and valuable contribution to democratic theory.