Canary in a Coal Mine: What it Means to Lose a Constitutional Right

JurisdictionUnited States,Federal
CitationVol. 39 No. 3
Publication year2023

Canary in a Coal Mine: What It Means to Lose a Constitutional Right

Mary Ziegler

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CANARY IN A COAL MINE: WHAT IT MEANS TO LOSE A CONSTITUTIONAL RIGHT THE 66th HENRY J. MILLER DISTINGUISHED LECTURE SERIES


Mary Ziegler*

Thank you for having me. I'm honored to be the first post-pandemic Miller lecture speaker too; that's very exciting.

So, to hear Justice Alito tell it, the destruction of abortion rights in the United States was a way to strengthen the nation's democracy. "The permissibility of abortion," he wrote, quoting Justice Scalia, "and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting."1 The history of Roe's death, I'm going to argue, and the history of what comes next is indeed a story about democracy, although I don't think entirely in the way Justice Alito described.

The story begins with efforts to use the courts to bypass changes in democratic politics and to revolutionize what equality meant—not just, of course, for unborn children, or people who can get pregnant, or women, but all protected classes, including people of color. It became an effort to change the ground rules of democracy—the way money flowed into federal politics, the relative spending power of different conservative constituencies, and even, eventually, the ability of people to cast a ballot in the first place. And so all of this means that the fall of Roe should concern you, whether or not you can be, or ever have been, or have any interest in becoming pregnant, or whether you take

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any interest in the pro-life or pro-choice movements themselves, because this struggle has very much become one about what kind of democracy we have.

So the story of the modern anti-abortion movement, I would argue, doesn't begin in the nineteenth century as Justice Alito would have us believe, although there was, of course, a pro-life or anti-abortion movement in that era when the American Medical Association and Dr. Horatio Storer—a Boston-bred, Harvard-educated, Harvard Medical School professor—led an effort to criminalize abortion throughout pregnancy—not just at quickening, which was the point often recognized at common law and in statute in the mid-nineteenth century.

Interestingly, though, the American Medical Association didn't describe its fight, its cause, as a constitutional one in the way that the modern pro-life or anti-abortion movement does. This may not surprise us in some ways. In the nineteenth century, at that time, the Supreme Court didn't recognize fundamental rights or privileges and immunities in a way we would become familiar with now. When those rights were recognized, and there were very few, they tended to be seen as belonging only to "citizens," which was a group that would have excluded many people of African descent and Native Americans. And the rights, such as they were, tended to mostly exist to protect the states from the federal government rather than individuals from the states, or as the Supreme Court explained in 1823, "to secure and perpetuate mutual friendship and intercourse among the people of different states of the Union."2 So there may have been no point in talking about the constitutional rights of the fetus or unborn child.

What's interesting, though, was that many others were talking about personhood as a source of rights, particularly after the Supreme Court's decision in Dred Scott v. Sanford.3 Abraham Lincoln thought that Dred Scott was wrong because it allocated rights based on

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citizenship. He argued, instead, that the Declaration of Independence recognized a different set of rights—a set of rights, he argued, that applied to all men. All men, he argued, were equal in certain inalienable rights, among them life, liberty, and the pursuit of happiness.

Members of the American Medical Association could have drawn the comparison between this language and the rights of a fetus or unborn child, as later generations of anti-abortion or pro-life activists consistently have. But at the time, that would have been a no-go for the American Medical Association, which was deeply divided about questions of race and slavery, as its membership was distributed across the United States in both slave and free states. The organization quite clearly wanted to avoid any conversation about slavery and then later about reconstruction. It was, as one of its members put it in 1863, "an organization eschewing all politics."4 Instead, the American Medical Association talked about when life began, describing abortion as "an act against nature and all natural instinct."5 And the organization talked about the roles of women, suggesting that it was women's biological destiny to have a potentially unlimited number of children. "Were women intended as a mere plaything," Horatio Storer explained, "there would have been [no] need for her of []either [a] uterus []or ovaries."6 So, in short, the early pro-life or anti-abortion movement said nothing about the Constitution, and the framers of the Fourteenth Amendment said nothing about abortion.

But the modern anti-abortion movement or pro-life movement had much grander ambitions. That movement mobilized in the 1960s as states began to reform their criminal abortion laws, mostly following a model developed by the American Law Institute, which carved out exceptions from criminal prohibitions in certain narrow circumstances like rape, incest, certain fetal abnormalities, and the like.

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The early movement opposed to abortion was predominantly Catholic, white, and middle class and originally argued that there was simply no need to legalize abortion, either because the procedure was never medically necessary because of advances, like caesarean sections becoming safer and antibiotics becoming more widespread, or because even rape and incest exceptions, for example, were unnecessary because pregnancy after sexual assault was so rare.

But these arguments weren't working, in part because people seemed to be pursuing abortions whether or not they were necessary. And so, instead, movement lawyers began to argue that abortion reform itself was unconstitutional. They experimented with a number of arguments to make this point. Initially, they seized on the Due Process Clause at a time when the U.S. Supreme Court was creating what later scholars would call "the due process revolution,"7 creating protections for criminal defendants that previously hadn't existed. The argument was that if there were procedural protections for even those accused of heinous crimes, surely a fetus or unborn child deserved the same respect. But there was the possibility, too, of an unenumerated right to life. There were scholars and commentators in the movement who pointed to Griswold v. Connecticut8 as a potential source of support, suggesting that if there were any implied rights in the Constitution, surely there must be a right to life.

But there were problems with all of these arguments, and one of the most central was the rise of equality arguments within the abortion reform movement itself. The early abortion reform movement, much like the early anti-abortion or pro-life movement, was a predominantly white, middle class, even elite, movement concentrated in the city of New York. But it was making arguments about the effects of criminal abortion laws on people who had no resources and primarily on people of color.

By the early 1960s, abortion, and really pregnancy in general, had become much more safe than it had in recent decades. But the safety

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of pregnancy or abortion had everything to do with income and often with race. Those who had access to private hospitals or to private insurance could bank on having quite safe outcomes with either. But over ninety percent of women who had therapeutic abortions in most of these hospitals in places like New York were white. And that meant that people of color were instead relying on hospitals—municipal hospitals—that rarely offered abortion at all, even in the most extreme circumstances. That meant, in effect, that people—Black women, in particular, and other people of color—were relying on dangerous at-home methods, and their deaths due to illegal abortion actually doubled between the early 1950s and 1960s.

The effects of criminal abortion laws on low-income patients became a new argument for abortion reform, essentially that criminal law was unfair to the poor. As one reformer, Dr. Ernest Solomon, put it in 1965 in testifying before the California legislature, "the rich get the birth control they want, the rich get skilled abortions, and the poor get neither."9 What was needed, people in the movement to end abortion thought, was an equality argument against abortion. And so they turned to the argument that the meaning of the word "person" in the Equal Protection Clause of the Fourteenth Amendment applied before, as well as after, birth, and that the protected or suspect classifications recognized under the Amendment included the fetus or unborn child.

Robert Byrn, a lifelong bachelor who worked at Fordham Law School and lived with his mother, was the major proponent of this theory. Byrn...

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