How Pro-Choice Will Win at SCOTUS When Roe Gets Challenged (Hint: Not “Penumbras” or Viability)
By: Nell Minow
Tags: Abortion, Pro Choice, Religion, Supreme Court

State legislators are passing laws restricting the right to abortion that are specifically designed to challenge Roe v. Wade, the 1973 Supreme Court decision that said that women have the right to make their own decisions about abortion until “viability” (the ability to sustain life outside the womb).

This Solomonic decision point was controversially grounded in a Constitutional right of privacy, a right not explicitly enumerated by the Founding Fathers, but, according to SCOTUS, implied in the “penumbras” and “emanations” of other constitutional protections. This right was first described in the 1965 case of Griswold v. Connecticut, overturning a state law that prohibited the sale of contraceptives.

Yes, Connecticut had a law making it illegal to buy birth control. Justice William O. Douglas said that the Bill of Rights protections guaranteeing the right of speech and the right to assemble and the right to be protected against unwarranted search and seizure imply that more intimate rights are protected as well. In Roe, SCOTUS balanced the right of the mother and the right of the future child by giving the states authority to restrict abortion after “viability,” which later led the first person to serve on the Supreme Court who actually knew what it was to be pregnant and give birth, Justice Sandra Day O’Connor, to say that the Roe decision “is clearly on a collision course with itself” as developments in medical technology made the viability point move closer to conception.

The new laws adopted by Georgia, Alabama, Missouri, Louisiana, Kentucky, Ohio, Arkansa, and Mississippi are not based on any determination of viability. They follow the adoption of “TRAP” laws (“targeted regulation of abortion providers”) in 24 states that attempt to reduce abortions by imposing restrictions on clinics that had no connection to making them safer or to any medical standards.

The new laws are defiantly inconsistent with Roe, and clearly intended as an attempt to overturn it, now that the Court has, anti-abortion strategists believe, shifted to the right with the appointment of two very conservative Catholic justices.

I do not think that Roe and Griswold will be the most significant precedent when the challenge reaches the Supreme Court, however. This time, the Court will not rely on penumbras and emanations, though the originalists on the court (those who claim to be bound only by what was explicitly in the minds of the men who wrote the Constitution at the time) might note that back in 1789, abortion was legal, and anti-abortion laws were not enacted until more than 100 years later. (I recommend Geoffrey Stone’s book Sex and the Constitution for more of this history.)

I believe the controlling case here is a more recent one, also involving contraception: Burwell v. Hobby Lobby. The owners of the Hobby Lobby stores, the Green family, are Christians who are opposed to birth control and believe it violates their religious principles. They challenged a provision of the Affordable Care Act (Obamacare) that required employers to purchase insurance for their employees that covered, among other things, reproductive health, including contraception. And the Court found in their favor.

I would have ruled differently. I would have concluded that the First Amendment’s assurance of freedom of religion does not allow anyone, even an employer, to impose their religious beliefs on anyone else. In my view, for example, an Orthodox Jewish employer could require that the food in the company cafeteria be kosher, but could not require the employees to refrain from pork and shellfish in their own homes or forbid them to use their salaries to buy non-kosher food. But that is not what the Court found, and that is going to be a problem for the anti-abortion litigants when they come to the Court to defend the new laws.

There are religions that believe a woman has the right to autonomy in matters of reproductive choice, including abortion. I believe the legal argument most likely to succeed in these cases is not based on privacy, but, like Hobby Lobby, on religious faith. The issue of when personhood attaches, especially in the context of laws unconnected to viability, is a religious one, not a medical or legal one.

The Court has said that it will not question the sincerity or legitimacy of the claim of a faith-based view. (For example, Hobby Lobby had provided insurance for its employees that covered birth control before passage of the ACA, so some might question whether their challenge was more about the law and the President behind it than it was about a steadfast objection to paying for health insurance that covers contraception.)

This leaves the door open for established religions as well as a group like the Satanic Temple, which was recently certified as an recognized religion by the IRS,* and whose seven tenets include the “inviolability of one’s body,” to challenge the restrictions as contrary to their faith. The Satanic Temple is already challenging the SCOTUS ruling on the law requiring burial of fetal tissue on religious grounds.

Because the court has said that it will not consider the sincerity or legitimacy of religious faith (I am not in any way implying that the faith of the Satantic Temple members should be questioned and recommend to anyone who might question their faith that they do some research including the recent documentary “Hail Satan?”), for the purposes of the legal challenge, that means that the sole consideration of the court will be whether the determination of personhood of the unborn and the weighing of the rights of the pregnant woman versus the rights of the — depending on your freighted terminology — zygote, clump of cells, embryo, fetus are matters beyond the scope of law and medicine and to be determined only by faith.

I predict that is what they will decide, based in part on the impossibility of making that decision within the limitations of the judicial and legislative processes and based in part on polling that shows up to three-quarters of Americans object to outright bans on abortion. SCOTUS is not immune to public opinion.

If anyone’s sincerity could be questioned, it should be the proponents of these anti-abortion rules. If indeed they are “pro-life” they would provide better care for pregnant women and babies, but these states are among the nation’s worst in infant mortality. If indeed their goal is to reduce abortions, they would support reproductive health and make contraception widely available. If indeed their concern is for women, they would not impose invasive, medically unnecessary procedures or force health care professionals to tell patients anything that is not clinically beneficial. If indeed their belief is that life begins at conception, they would enact laws to protect embryos in fertility clinics.

But they don’t. It is not babies they love; it is abortion they hate. So be it. They do not have to choose to have an abortion. But the right of others to choose differently is, well sacred. The decision either way is deeply personal, and should be made by the woman herself, in consultation with health care professionals and whatever spiritual guidance most meaningful to her, and not by elected officials who have no authority to legislate theological matters. If Hobby Lobby gave employers rights over their female employees’ reproductive organs, here it will give women the chance to have rights over their own.

*I can’t help remembering the scene in the classic “Miracle on 34th Street” where delivery of letters addressed to Santa Claus by the USPS is considered legal proof that the recipient is indeed the Santa who lives on the North Pole and brings gifts to children.