Why the right to elective abortion fails Casey's own interest-balancing methodology - and why it matters.

Author:Gilles, Stephen G.
Position:III. Reasoned Judgment: Evaluating the State's Interest in Pre-Viable Fetal Life in Casey's Terms B. The Woman's Weighty Interests in an Elective Abortion through Conclusion, with footnotes, p. 728-756
  1. The Woman's Weighty Interests in an Elective Abortion

    I've argued that, even accepting Roe's characterization of the pre-viable fetus as "potential human life," the state's interest in protecting that life is almost on a par with the state's interest in viable fetal life, which Roe and Casey hold outweighs the woman's interest in terminating her unwanted pregnancy. The next step in the analysis is to discuss the nature of the woman's interests at stake and the weight they should receive. A woman who is legally required to carry her pregnancy to term must endure both the prenatal burdens of continued pregnancy and childbirth and the post-natal burdens of raising her child or relinquishing it to be raised by others. Roe and Casey make plain that the woman's specially protected liberty encompasses her interests in avoiding both the pre- and post-natal burdens, and thus both must figure in an interest-balancing analysis.

    The burdens of pregnancy and childbirth are serious and invasive even when the pregnancy is wanted. The common ones include faintness, nausea and vomiting, tiredness, insomnia, shortness of breath, tender breasts, constipation, frequent need to urinate, backache, edema of the feet, leg cramps, varicose veins, hemorrhoids, mastitis, dry skin, irritability, depression, loss of sexual desire, weight gain, the often severe pain of labor if delivery is vaginal, and the risks, pain, and scarring of a C-section if it is not. (186) Moreover, as Donald Regan points out, these "pains and discomforts ... are likely to be significantly aggravated when the entire pregnancy is unwanted." (187)

    For some women, choosing abortion may simply be a matter of avoiding the physical and emotional burdens of pregnancy and childbirth. But very often the phrase "unwanted pregnancy" is a euphemism for "unwanted child'--that is, a child the woman is unwilling (or unable) to raise after it is born. Unsurprisingly, Roe treated the burdens of child-raising as an important part of the case for recognizing that the woman's liberty to choose to terminate her pregnancy is encompassed by the "right of privacy." (188) An unwanted pregnancy, the Court said, "may force upon the woman a distressful life and future," in which her "health may be taxed by child care," she may experience "the distress ... associated with the unwanted child," and she may have to wrestle with "the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it." (189) Similarly, Casey s account of abortion liberty stresses both the burdens of pregnancy and the life-altering importance of the woman's decision to accept or reject our culture's "vision of the woman's role"--that is, motherhood, which traditionally includes child-rearing as well as child-bearing. (190) The burdens of motherhood, in turn, include both the expense of raising a child and the curtailment of the mother's freedom. Like the burdens of pregnancy, they are presumably harder to bear when the child is unwanted.

    Oddly, neither Roe nor Casey discusses the fact that the laws of every state give the woman an alternative way to avoid child-rearing: after giving birth, she can formally relinquish her parental rights, in which event her child will be cared for by adoptive or foster parents. (191) Perhaps the omission is explained by the fact that most women are extremely reluctant to relinquish their newborn children even if they were initially unwanted. (192) When Roe was decided only twenty percent of single mothers put their children up for adoption--and that percentage has since declined. (193) As Reva Siegel suggests, several factors work in tandem to make adoption an unattractive alternative: "A woman is likely to form emotional bonds with a child during pregnancy; she is likely to believe that she has moral obligations to a born child that are far greater than any she might have to an embryo/fetus; and she is likely to experience intense familial and social pressure to raise a child she has borne." (194) When women do relinquish their infants, they frequently grieve for years over their separation from them. (195) Moreover, whether she raises or relinquishes the unwanted child, the child's father or members of her family may disagree with her decision, which may adversely affect her relationships with them.

    In sum, the woman who is pregnant with an unwanted child finds herself in this situation: the very fact that she does not want the child makes the burdens of pregnancy and childbirth harder to bear, and once she gives birth she must either accept the multi-faceted burdens of raising her newborn child, or the emotional and relational burdens of relinquishing it. A previability abortion enables her to avoid these heavy and long-lasting burdens by terminating her pregnancy and ending the life of the pre-viable fetus.

  2. Casey's Murky Interest-Balancing Standard

    As we've just seen, the woman's interests in an elective abortion are very weighty. To end the life of the pre-viable fetus, on the other hand, is to prevent the continued development of a biologically human being whose nature is actively directing its development into a normatively human being--and thereby to deprive it of a future like ours. We have, then, especially weighty interests on both sides of the constitutional balance. How are we to decide which prevails as a matter of "reasoned judgment"?

    Dissenting in Casey, Justice Scalia objected that Casey's interest-balancing approach ultimately turns on "a value judgment" that, insofar as it is not dictated by constitutional text or tradition, simply cannot be "determine [d] ... as a legal matter." (196) Scalia's point is axiomatic if the Court's role is confined to determining and enforcing value judgments that are authoritatively embedded in the Constitution or anchored in our traditions. But if we assume, as Casey does, that the Due Process Clause authorizes the Justices to adopt new value judgments in order to define the scope of the liberty it substantively protects, then the Court must either make that value judgment as it thinks best, or else adopt a standard that the state's value judgment against elective abortions must satisfy.

    Casey is silent on this score--understandably so, given its failure to address the merits of the interest-balancing judgment on which it reestablished the right to elective abortion. Justice Souter's concurring opinion in Glucksberg, however, glosses Casey by adopting a requirement that the state's value judgment not be arbitrary. Like the Casey joint opinion, Souter's concurrence invoked Justice Harlan's famous description of substantive due process as including "a freedom from all substantial arbitrary impositions and purposeless restraints" and as recognizing "that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment." (197) But whereas the Casey Court had no occasion to operationalize Harlan's account of substantive due process, Justice Souter argued that it should be applied as follows:

    The weighing or valuing of contending interests ... is only the first step, forming the basis for determining whether the statute in question falls inside or outside the zone of what is reasonable in the way it resolves the conflict between the interests of state and individual.... It is only when the legislation's justifying principle, critically valued, is so far from being commensurate with the individual interest as to be arbitrarily or pointlessly applied that the statute must give way. (198) Under the Harlan/Souter approach, the Court should recognize a right to elective abortion only if the state's interest in protecting pre-viable fetal life is "so far from being commensurate with" the woman's interest in an elective abortion that it falls outside "the zone of what is reasonable" and is thus arbitrary. (199) As an original matter, a state law prohibiting elective abortions should readily satisfy this version of interest-balancing scrutiny. It would be eminently reasonable, and far from "arbitrary," for a state to decide that the good achieved by saving the life of a fetus that will naturally become a human being and a person outweighs the heavy burdens its mother must bear while she is pregnant and after she gives birth.

    Whether or not the Casey plurality would have adopted this standard had it reached the question, a powerful argument can be made that the Court should do so when it applies Casey's interest-balancing methodology. The right to elective abortion is an unenumerated right that lacks the "deeply rooted" grounding in the Anglo-American legal tradition that the Court has often required in substantive due process cases, (200) and that its subsequent decision in Glucksberg took to be its "established method." (201) In departing from that method, Casey adopted the most plausible alternative methodology for judicial recognition of such rights: interest balancing, which, whatever its drawbacks, at least prompts the Court to engage in a serious inquiry into the strength of the competing state and individual interests, and to articulate the reasons why one outweighs the other. The Glucksberg Court declined Justice Souter's invitation to adopt interest-balancing as its general method in substantive due process cases, arguing that its tradition-centered approach is superior because it "tends to rein in the subjective elements that are necessarily present in due process judicial review," and "avoids the need for complex balancing of competing interests in every case." (202) Strikingly, however, both of Glucksberg's criticisms of interest-balancing apply with greater force to de novo interest-balancing--in which the Court decides which interest it finds more weighty--than to interest-balancing that is tied to a standard of arbitrariness. As Souter explained, the requirement that the statute be shown to be arbitrary before being declared...

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