A WORLD WITHOUT ROE: THE CONSTITUTIONAL FUTURE OF UNWANTED PREGNANCY.

AuthorSuk, Julie C.

TABLE OF CONTENTS INTRODUCTION 447 I. THE END OF ROE AND ITS PRIVACY RATIONALE 450 A. Dobbs and Substantive Due Process 450 B. Roe's Logic of Privacy in the Body and the Family 451 C. The Limits of Privacy for Reproductive Justice 456 D. State Abortion Bans After Dobbs 462 II. EMERGING GLOBAL CONSENSUS NORMS ON ABORTION ACCESS 466 A. Recent Evolutions from Protecting the Unborn to Protecting Abortion Access 466 B. The Indications Approach 472 1. Evolution and Expansion of Indications in Europe 473 2. Indications in the United States Before Roe 476 III. CONSTITUTIONAL CHANGE RECOGNIZING THE PUBLIC VALUE OF PREGNANCY AND MOTHERHOOD 478 A. German Jurisprudence on the Burdens of Motherhood 478 1. The 1975 Rejection of Abortion on Demand 479 2. "Exactable" Burdens 480 3. The Legislative Response 480 4. Protecting Unborn Life by Supporting Parents 482 5. Insights for the United States 488 B. The Irish Constitutional Transformation: Tragic Pregnancies and Citizens' Assemblies 488 1. The Pro-Life Constitutional Amendment of 1983 488 2. Expanding the Mother's Right to Life 490 3. European Human Rights Law and the Need for a Workable Framework 491 4. Engaging the People in Constitutional Change 493 5. Abortion's Relationship to Constitutional Gender Equality and the Protection of Care Work 498 6. Insights for the United States 502 IV. AMERICAN PATHS FORWARD: MOTHERHOOD AS PRIVATE CHOICE OR PUBLIC GOOD? 503 A. Building Takings and Thirteenth Amendment Challenges to Abortion Restrictions 504 1. The Takings Challenge 504 a. Pregnancy as a Public Good 505 b. PProperty Rights in Pregnancy 507 i. Property Rights in Body Parts and Tissue 508 ii. Commercial Gestational Surrogacy's Transformation of Legal Motherhood 509 iii. Legal Parenthood Under Safe Haven Laws 510 c. Liability for Nonconsensual Womb Rental 511 2. The Thirteenth Amendment Challenge 513 B. Citizen Participation in Defining the Scope of Life and Health Exceptions 514 1. Expanding the Life-Saving Exception to the Abortion Ban 515 2. Psychosocial Factors in Risks to Physical Health 516 3. Juries and American Litigation Before Roe 516 4. Evaluating Threats to Life and Risks of Substantial Impairment 518 5. Life and Health Risks and Rational-Basis Review Under Dobbs 520 CONCLUSION 521 INTRODUCTION

Can access to abortion survive in a world without Roe v. Wade? After the Supreme Court's decision to overrule Roe in Dobbs v. Jackson Women's Health Organization, (1) state laws banning nearly all abortions have become enforceable. (2) This Article shows how access to abortion can become safe, legal, and free over time in a world without Roe, by drawing on the contrasting logics of abortion protections that have evolved in the world outside the United States.

In the same moment that law has constrained access to abortion in the United States, other constitutional democracies have moved in the opposite direction, expanding access to safe, legal, and free abortions. (3) They have done so without reasoning from Roe's vision of the private nature of unwanted pregnancy. (4) The development of abortion law outside the United States provides critical insights that can inform future efforts to vindicate the constitutional rights of women facing unwanted pregnancies. This Article maps out new paths within existing U.S. law for legal abortion access that can be explored in the wake of Dobbs.

The law and politics of abortion around the world are not monolithic, as evidenced by the range of comparative and international law amicus briefs filed in support of each side in Dobbs before the Supreme Court. (5) But the countries that permit broad legal access to abortion generally do so without embracing Roe's insistence that pregnancy belongs to a fundamentally private sphere that is immune from governmental intervention. (6)

This Article examines how constitutional democracies around the world have progressed from banning most abortions to legalizing many of them at the very same moment that the U.S. Supreme Court has allowed states to ban almost all abortions. While global constitutional norms cannot easily be transplanted to U.S. law, the trajectories of jurisdictions that developed the right to abortion access from strong pro-life baselines could inform the alternatives to Roe by which abortion access could be reimagined and reestablished in America. The transnational embrace of the public, rather than private, dimensions of unwanted pregnancy is the generative move worth studying. A full appreciation of the State's interest in pregnancy and parenthood might guide the formulation of new constitutional arguments under the Takings Clause, or, to a lesser extent, the Thirteenth Amendment ban on involuntary servitude, to reinforce the State's constitutional duties to citizens who face unwanted pregnancies. Drawing on emerging legal principles around surrogacy and property interests in one's body, these arguments articulate what the State owes to the people who make future generations possible by bearing the bodily risks, burdens, and sacrifices required to turn unborn life into born citizens, workers, and persons--sometimes unwillingly.

In the world of abortion access without Roe, restrictions on abortion are illegitimate, not because they violate privacy or even equal protection of the laws, but because they manifest the government's failure to properly value the shared public benefits of human reproduction.' By effectively forcing women to continue unwanted pregnancies to term, abortion bans enable the State to protect unborn life and to spawn its next generation of citizens and workers to the enrichment of society as a whole. (8) The State relies on people who become pregnant to absorb disproportionate risks, burdens, and costs to generate this collective benefit. (9) Unlike other people who are conscripted to defend and enlarge the State and society, pregnant people are generally not compensated for their contributions. (10)

The idea that the State unjustly extracts this value out of pregnant persons by banning abortions is developed in the abortion jurisprudence of some European courts. Ireland's recent processes of amending its constitutional protection of unborn life to legalize abortion in a range of circumstances are particularly instructive. (11) The abortion liberalization amendment paved the way to additional processes by which the people participated in proposing reform of the Irish constitution's provision protecting mothers, towards gender-equal protections for childrearing work. (12)

Drawing on comparative constitutional law, this Article imagines the world of abortion access after and without Roe, exploring takings, the Thirteenth Amendment ban on involuntary servitude, and strategies for reasonable expansion of the life and health exceptions to abortion bans as potential anchors for reproductive justice as a constitutional principle, a constitutional commitment that reaches beyond abortion rights.

Part I charts the evolution of the American constitutional right to abortion, from Roe to Dobbs. Roe grounded the right to abortion in substantive due process privacy rights (13) and was limited in its ability to make abortion access real for the women most vulnerable to the negative consequences of continuing an unwanted pregnancy. Exploiting the weaknesses of Roe's privacy reasoning, Dobbs overruled the longstanding constitutional barrier to state laws banning abortion, which became enforceable. Part II examines the constitutional law of abortion access in peer democracies, from the frameworks that emerged in most of Europe since Roe, to the transformations in pro-life countries that decriminalized abortion in recent years, such as Ireland, Colombia, Argentina, Mexico, and South Korea.

Part III focuses on two case studies--Germany and Ireland--that demonstrate the common thread in laws liberalizing abortion around the world: the understanding of unwanted pregnancy as a public problem for which the State bears responsibility, rather than a purely private matter as in Roe. The German constitutional court twice rejected abortion on demand, contemporaneously with Roe and Casey, while envisioning the situations in which women's autonomy required abortion access. In Ireland, the constitutional amendment of 2018 paved the way to legislation protecting abortion access, after decades of public engagement of tragic situations of pregnancy. These constitutional democracies have embraced strong State involvement in all stages of pregnancy and parenthood. (14) Ironically, this strong-State approach has made abortion more accessible to poor women than it was in the United States under Roe. (15)

Finally, Part IV suggests ways of transposing these insights from the world of legal abortion outside of the United States, identifying the unique opportunities within U.S. law and legal institutions. What would it mean for the State to fully recognize, compensate, and value the risks and sacrifices sustained by women due to unwanted pregnancies? Future challenges to the new near-total abortion bans, including Texas's S.B. 8, could reason from the logic of regulatory takings and/or involuntary servitude under the Thirteenth Amendment. In addition, litigation could seek to define, in a reasonable and empathetic expansion, the "medical emergency" exceptions that have been written into the laws banning abortion.

  1. THE END OF ROE AND ITS PRIVACY RATIONALE

    1. Dobbs and Substantive Due Process

      The Supreme Court justified its decision to overrule Roe u. Wade on the grounds that "the Constitution makes no reference to abortion." (16) A major weakness of Roe, according to Justice Alito writing for the five-Justice majority, was that "the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned." (17) The Due Process Clause of the Fourteenth Amendment, on which Roe relied, protected "some rights that are not mentioned in the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT