In February, Pew Research reported that the percentage of American adults with a favorable opinion of the Supreme Court had dropped in three years from 69% to 54%, and only 16% thought the Justices keep their politics out of their decisions. The draft decision leaked last month in Dobbs v. Jackson Women’s Health, which would overrule 50 years of constitutional protection for abortion, has already further eroded confidence in the court
By eliminating three major inconsistencies with the draft’s own constitutional analysis, the court would encourage confidence by moving from “religious” to constitutional analysis, restricting but still allowing abortion in a manner that would reflect the views of most Americans historically and currently, and largely eliminating continued political and litigation paralysis.
The historic sources used in the draft suggest constitutional limitations on abortions are only appropriate after the fetus is 15 weeks old.
The draft relies on Blackstone (a source of law on rights at the time of the U.S. Constitution) to argue restrictions on abortion after “quickening” (movement, generally when the fetus is about 15 weeks old) shows there was no “right” to abortion. But the draft omits Blackstone’s immediately preceding statement of the basic “liberty” right: “The right of personal security consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation.”
It was this fundamental right of control over one’s own body that was subject to the limited restriction on abortion the draft cites – only after the fetus is 15 weeks old (not from conception, as required by some religious doctrine). The right over one’s body – including abortion – until 15 weeks of pregnancy was thus clearly “deeply rooted in this nation’s history” and “implicit in the concept of ordered liberty,” the standard used in the draft.
This “liberty” was protected in 1791 in the 5th Amendment’s protection of “life, liberty and property.” In 1868, the 14th Amendment used the exact same “life, liberty and property” language to extend these national 5th Amendment rights to all states. Moreover, even if appropriate to look independently at different states’ views of “liberty” in 1868 (after all, we had just fought the Civil War to nationalize concepts of liberty), the same result would hold: many states restricted abortion only after quickening (as shown in the state statutes reprinted in the draft’s appendix), and others understood they did or passed statutes merely to protect the safety of the woman from unsafe medical practices.
By the draft’s own analysis, the Constitution would clearly also protect the right of a woman to terminate her own pregnancy within the first 15 weeks. This right is not only protected by Blackstone’s principal of control over one’s body (discussed above) but even evident in the language of the statutes of the 37 states in 1868. These statutes typically made it unlawful only to “administer to” a pregnant woman. A self-abortion of a 15-week fetus might have been a religious sin but was not illegal in 1791 or 1868. This right of a woman to terminate her own pregnancy may prove critical in our age of abortion by pill.
Finally, the draft toes a religious line to eliminate abortion even when it might save the life of the woman (mother). The draft broadly asserts there is no constitutional protection for any abortion. Yet, the right to “life” as well as “liberty” of a “person” is included in both the 5th Amendment and the 14th Amendment.
And the right to abortion if the life of the woman is at risk was also expressly provided in many state statutes by 1868 and was included in even the reddest states’ statutes existing before the draft was issued, though not accepted in Catholic doctrine and already being targeted by new anti-abortion activism. The risk today of death from maternity remains about 50 times greater than from first trimester abortion, so this “right to life” is still critical.
If the draft had been consistent constitutionally, it would have sustained Mississippi’s 15-week abortion law but rejected stricter prohibitions on abortion. Beyond that, a legislature could choose to regulate or prohibit abortion – or not.
If this internally consistent result would not be what those of us who support Roe or those who oppose all abortion want, perhaps it is the result the country now needs. It would provide clear lines and less room for litigation. And by settling the issue, perhaps it would also encourage all to focus on support services, so that abortion, even when legally protected, is less frequent.
Instead, the draft would lead – indeed, has already led – to more extreme legislative action in states and Congress, and even more litigation, including testing liability for inter-state assistance for abortion or restricting abortion. It would almost certainly also lead to further attempts to denigrate and change the court, and, eventually, overrule this decision.
The draft correctly points out that the high court’s decision should be based solely on the Constitution and not swayed by public opinion. But neither should the Court be swayed by politics or religion. The court and “We the People” deserve better.
Andy Schatz is a retired lawyer who teaches classes about the Constitution and Supreme Court, has served as the president of the American Civil Liberties Union of Connecticut and on the national ACLU Board and Executive Committee, and has litigated constitutional cases, including with the ACLU. He is also currently a member of the Commission on Social Action of Reform Judaism. The views expressed here are personal and do not represent the views of any organization.