A comparative analysis of the doctrinal consequences of interpretive disagreement for implied constitutional rights.

• Published date: 01 January 2012
• Author: Robinson, Zoe
• Date: 01 January 2012

III. THE UNITED STATES IMPLIED RIGHT TO AN ABORTION

As with the Australian implied freedom of political communication, a woman's right to an abortion has been implied from the U.S. Constitution by the Supreme Court. (111) Like the Australian implied freedom, the implied right to an abortion has been the subject of intense disagreement as to the legitimacy of the majority's interpretive methodology in recognizing the initial implication. (112) Of course, unlike the interpretive debate over Australian implied freedom, the question of interpretive legitimacy in relation to Roe is largely fueled by extra-legal factors, namely intensely held views on the moral status of the fetus and the right of women to reproductive autonomy. (113) The moral character of the implied rights debate in the United States has energized significant political debate over the implied right and a natural reaction to the claim in this Article, that the Supreme Court's revisions in relation to the implied right to an abortion stem directly from the interpretive controversy about Roe, is that the interpretive arguments merely function as a cipher for these external, value-laden concerns.

However, this critique has its limits: scholars have strongly criticized the interpretive approach in Roe, (114) and further, it is the interpretive controversy that provides the opponents to the implied right with a potent, respectable, and ostensibly apolitical constitutional argument. (115) For example, Justice Scalia, a leading critic of Roe, openly values the right of the unborn fetus (at any stage of in utero development) over the rights of the mother, (116) yet his attack on Roe is not grounded in religion or morality, but rather in the interpretive techniques that the Roe majority did (or did not) employ in grounding the implied right. (117) Whether or not the interpretive disagreement is informed by other concerns, then, it is the interpretive criticisms that the U.S. Supreme Court, like Australia's High Court, has purported to address. (118)

While the constitutional contexts of Australia and the United States are clearly different, (119) with rights occupying a far stronger constitutional position in the latter, (120) the distortions in the development of the Australian implied freedom, namely the influence of judicial self-consciousness about the vulnerability of the right and the lack of contextual support for doctrinal development, are also evident in the development of the U.S. implied abortion right. As with the implied freedom, the interpretive disagreement over the implied fight centers on the privileging of the interpretive methodologies of textualism and originalism, and in both legal cultures, it is these arguments that largely fuel the interpretive disagreement over implied rights. (121)

A. Recognizing the Implied Right

The implied right to an abortion was first recognized in the 1973 case Roe v. Wade and its companion case of Doe v. Bolton. Importantly, however, the foundation for the Roe decision was established in the 1965 decision of Griswold v. Connecticut, where the Supreme Court held that Connecticut legislative restrictions on the use of contraceptives by married couples violated a "right of privacy older than the Bill of Rights." (122) The Court held that various provisions of the Constitution, including the First, Fourth, Fifth, and Ninth Amendments, created "zones of privacy," (123) and privacy was a "fundamental personal right." (124) In its decision in Eisenstadt v. Baird (125) seven years later, the Court extended this holding to unmarried couples, stating that, "[i]f the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted government intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." (126)

1. The Majority Decision in Roe

A seven justice majority, Chief Justice Burger, and Justices Douglas, Brennan, Stewart, Marshall, Blackmun, and Powell, (127) noted that the Court's previous decisions implying a right of privacy from the provisions of the Constitution protected "fundamental" rights "implicit in the concept of ordered liberty." (128) Undertaking a detailed examination of the history of abortion laws, the Court argued that restrictive abortion laws were a relatively recent phenomenon introduced not to save potential lives, but to protect women's health, an interest that "has largely disappeared." (129) For the Court, the physical and psychological burdens of pregnancy are so great that the right of privacy, whether founded in the concept of personal liberty in the Due Process Clause of the Fourteenth Amendment, or the Ninth Amendment, which reserves rights to the people, was "broad enough to encompass a woman's decision whether or not to terminate her pregnancy." (130)

The Court held that while the right of personal privacy protecting a woman's right to an abortion is fundamental, this right is not absolute, (131) and access to abortion can be restricted where there is a compelling state interest. (132) Although declining to make a ruling on when life begins, (133) or find that a fetus was a "person" for constitutional purposes, (134) the Court held that the state has interests in the following: first, the health of the mother, which becomes compelling in the second trimester (until this point, the Court held, an abortion was no more dangerous than carrying a pregnancy to term); (135) and second, in the preservation of potential life, which the Court held only becomes compelling at the end of second trimester, when the fetus reaches viability--at which point the Court determined the fetus has the "capability of a meaningful life outside the mother's womb." (136)

B. Interpretive Disagreement

Roe remains one of the most criticized decisions of the Supreme Court, (137) with the majority justices attacked for both the interpretive methodology they employed and the moral consequences of the decision. As discussed in this section, three broad categories of interpretive criticism were raised against the majority decision in Roe. First, critics argued that the implication was not grounded in the interpretive orthodoxy of constitutional text and history. Second, that there was a preferable locale, either the Equal Protection Clause or the First Amendment, for the grounding of the fight to an abortion. Third, assuming that the fight to an abortion was a sound implication to draw from the Constitution, the presumption of judicial protection, rather than legislative protection, was ill-conceived. (138)

1. Interpretive Disagreement: Implications and Interpretive Orthodoxy

The key criticism of the Roe decision is that it is not grounded in interpretive orthodoxy. This critique generally manifests in one of three forms.

a. Objection to Implications Generally

The first form of the disagreement with Roe that relies on interpretive orthodoxy is an objection to any theory of implied rights more generally. That is, these commentators object not only to the specific implication in Roe but also to the more general theory of drawing rights-based implications from a written constitution. This objection argues generally that the Constitution enumerates a series of rights, and there is no authority for judges to stray beyond these expressly articulated rights; to allow this would be to "abandon all hope of limiting judicial power." (139) This argument considers judge-made law to be constitutionally suspect when it has "little or no cognizable roots in the language or design of the Constitution" (140) and often relies on the historical distinction between America's adoption of a written Constitution, in direct contrast to English constitutionalism and unwritten law. (141) For these critics, it is both interpretively and democratically objectionable that the judiciary assumes responsibility for issues not expressly articulated in the written Constitution.

b. Objections to the Privacy Implication

The second form of the disagreement with Roe based on interpretive orthodoxy, while accepting that rights implications can be drawn from the Constitution, is an objection to the implication of privacy from the Due Process Clause. This critique of Roe rests on the premise that neither a strict textualist reading of the Constitution nor constitutional history supports the implication of any general privacy right. (142) Similar to the first form of the argument based on interpretive orthodoxy, the opponents of an implied right of privacy contend that "when the Constitution sought to protect private rights it specified them; that it explicitly protects some elements of privacy, but not others, suggests that it did not mean to protect those not mentioned." (143) In spite of the weight of precedent, (144) the claim is that these cases do not establish a general right of privacy, rather, they were indicative of specific privacy interests that had secure grounding in the constitutional text and history. (145)

c. Objections to the Extension of the Privacy Implication to Abortion

The third form of the orthodox interpretive disagreement with Roe argues that while there may in fact be a generalized right of privacy emanating from the Constitution, it cannot extend to an implied right to an abortion because sexual privacy is not mentioned in the Constitution, nor does the constitutional text or history in any form suggest an original intent to protect a right to an abortion. These critics draw on the Court's own supporting argument in Roe, that a right will only be implied if it is "so rooted in the traditions and conscience of our people as to be ranked as fundamental," (146) or "implicit in the concept of ordered liberty," (147) and contend that while this argument can support various other aspects of "privacy," it cannot support a fight to an abortion. The commentators argue that abortion rights are not deeply rooted in the traditions of the United...