Q&A for Geoffrey R. Stone’s Franke Forum, “Sex and the Constitution: The Road to Roe”

Q&A for Geoffrey R. Stone’s Franke Forum, “Sex and the Constitution: The Road to Roe”

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So I’m happy to take questions. Jim: And I have the Phil Donahue system here, so I’ll be going around… Go for it! Jim: Thank you Geoff. Audience: It’s my recollection, I heard Cass Sunstein… Don’t believe anything Cass Sunstein says! Audience: Yeah, right? He’s my best friend. Don’t believe him. Audience: I remember him making the argument that the grounds on which Roe V. Wade was argued were rather weak, and that he and others preferred another argument. A constitutional argument, and I wonder if you could share that. Sure So Roe V. Wade was decided on the notion that a woman has a constitutional right to control her own body as a matter of the autonomy and privacy of an individual. And it built upon prior decisions that had held laws prohibiting contraception were unconstitutional. So it drew on that notion of the independence and autonomy of woman as a substantive right of self-determination. What some people argued is that Roe should, instead have been decided on the grounds that laws against abortion discriminated against women. As an equal protection argument. As the familiar saying went, if men could get pregnant, abortion would be legal. Right. And the court did not do that. And the reason why that argument is what the court should have done is wrong, is as follows: and it’s actually sort of interesting and personal. It’s a little bit long, but it’s worth telling. So at that time, the Supreme Court had not yet held that laws that discriminated on the basis of gender are presumptively unconstitutional. At the very same time that Roe V. Wade was being deliberated on by the court, the court had a case called Frontiera V. Richardson that raised exactly that question. And I, as Justice Brennan’s law clerk, he was assigned to write the case, I wrote an opinion for Justice Brennan that argued that laws that discriminated against women should be presumptively unconstitutional. But we could not get a majority. Several of the justices basically took the view that the Equal Rights Amendment is now pending, it’s going to pass. It would be unwise for the court to preempt the Equal Rights Amendment. And therefore we should just leave this to another day. So at that moment it was simply not in the cards at all. Jim: It was an old joke in the 70s that if men could get pregnant abortion would be a sacrament. Audience: Thanks Geoff, I learned a lot from listening to you. My question has to do with the arguments in favor of abortion. It seems like so much of the language is infused with religious morality. So many of the arguments. You mean the arguments against abortion? Audience: Yes, I mean against abortion. So how does that not conflict with the separation of church and state? Well that’s, of course, a good question. I actually understand why people who believe in their religious faith, what they do about the fetus being a human, feel as strongly as they do about this issue. I mean, if a state enacted a law that said you could kill a child up to the age of 2, if you decide you don’t want it after all, right? I think most of the people in this room would go nuts. Well, for those people who are religiously committed to the understanding and to the belief that a fetus is a person from the moment of conception, that’s what this law feels like. And I actually respect the fact that they feel that. But it is a religious belief. And for the law to enforce a religious belief on people who do not share that faith, is a clear violation of the aspirations of our nation to separate church and state. And in the gay rights cases, the court was quite explicit about this in several of its opinions. Where it basically said ‘the primary argument about homosexuals and about sodomy and about same-sex marriage is a religious one. And it’s held by people with complete conviction, but secular law can not be based on that. And I think that’s equally true in the abortion context. Audience: If Roe V. Wade was overturned, am I right that it goes back to the states, then? So isn’t there precedent that if somebody has to go from one state to another to get a right, that it’s unconstitutional for that state to put its obligations on another state? I don’t know if it was the Griffin case or whatever it was where somebody went to an all black school I don’t know what southern state it was. And then when they wanted to go to law school there was no black law school so they gave that person’s tuition to go to an adjoining state, and that was deemed unconstitutional. Right, that is because there is a constitutional right not to be discriminated against on the basis of race. If Roe V. Wade is overruled, there’s no constitutional right to an abortion. So the problem doesn’t present itself. Here are some scenarios if Roe is overruled. So some states, presumably Illinois and New York and California, would legalize abortion as a matter of statutory law. And citizens in that state would be able to get abortions more or less the way they can today. The problem, though, is in… if you actually look at it, probably at least 28 states probably 34 states, if you look at the way they vote on issues, would not legalize abortion. So what happens to women in those states? Well, presumably they could go to another state to have an abortion. The states that legalize abortion are not going to tell people from other states who want to come here to have abortions they can’t have abortions. As a policy matter, they’re not going to do that. But this is why I mentioned poor women and minority women. They can’t afford to do that. We know that from past experience, right? And so the reality is, even today, by the way, it’s interesting. Even today, because Medicaid and state Medicaid in most states does not cover abortion, and in many states even when it’s necessary for the health of the woman will not cover abortion. The percentage of women who have unwanted pregnancies: if you’re middle class or above, you have an abortion. If you are below the poverty level, you’re 5x more likely to have an unwanted child. Because you can’t afford the abortion. And the state doesn’t subsidize it. And that’s why Planned Parenthood is so important to those women. But even so, most poor women cannot afford to do that. And so it would only add to the burden that they have to go to another state, which they realistically often couldn’t do. Oh, and there’s one other possibility, if you wanted to talk about really, to me at least, terrible possibilities. It is not completely inconceivable that a court consisting of justices who hold the views like Scalia, Alito, and Thomas, at least those three, I would say, would hold not only that there’s not a constitutional right to abortion, but that a fetus is a person within the meaning of the 14th amendment, and therefore to allow abortion would be the equivalent of allowing murdering your 2 year old child. And therefore would be unconstitutional to allow abortion. Now that’s an additional leap, but it’s not an inconceivable one. Audience: I just wanted to go back, in your timeline it seemed like in the 1800s there was a movement of what I believe you called the rising of this religious moral group that made abortion illegal, and again with the Reagan era how it sounded like as governor he liberalized the laws, but then as president he clamped down on them. How do you explain that phenomenon, and where were the opposing voices? So Reagan signed a law that liberalized abortion laws in 1967. When there was no strong anti-abortion movement because abortion wasn’t legal. So he was just allowing it in some circumstances where previously it hadn’t been allowed. Like to protect the health of the woman. Or previously it was only to protect the life of the woman. But by 1980, in part because of Roe and because of the culture wars and the Moral Majority, that had all changed. And so between 1967 and 1980, the anti-abortion movement grew dramatically. And it was triggered by the combination of issues, including the beginning of gay rights the ERA, and the proliferation of obscenity and all of this basically created this very powerful, large, evangelical, and Catholic coalition that was opposed to all of these issues, not just abortion. So that’s the key thing that changed in that time. What began in the late 19th C. that led to the outlawing of abortion there wasn’t much pushback at the time. There were people who pushed back. There were people like Margaret Sanger and others who were famous who pushed back. But there wasn’t much organized pushback at that time. There was no women’s movement, didn’t exist. Women were more concerned about suffrage, to the extent that there were women activists they had other issues that they were more focused on So actually during the suffrage movement, interestingly, many of the leaders of the suffrage movement distanced themselves from issues like contraception and abortion. Because they were more concerned about getting the vote. And so there was not really a pro-women’s rights movement on issues like reproductive rights until later. Audience: I’d like to give you a chance to recant on something you just said. Never mind. Give the microphone to someone else. [laughter] Audience: Well, I’ll try anyhow. Surely there are, in fact, I can say there are people who are not Christians, who are not religious at all, who are in fact atheists even who have concluded either on natural law grounds or on slippery slope arguments very intelligent people that conclude abortion should be morally wrong or should be considered morally wrong, and whether it should be prohibited or not by law, would then be a serious policy question. And yet you seem to have dismissed those arguments all as basically religious. And that led to your second point, which was that if it’s a religious ground, it shouldn’t play a part in a constitutional decision. That also is certainly a question that one can raise, that one can favor equal rights because one has a religious commitment, and the argument can certainly be made. So, with respect to the non-religious reason for opposing abortion, if you look at public opinion polls, which are all over the place, that’s a tiny fraction of the people who are strongly anti-abortion. So that’s not what it’s about fundamentally. Second of all, moral grounds, even, are not sufficient to outweigh important constitutional interests. So there are moral objections to same-sex marriage that were not necessarily religious but the court dismissed that, correctly, in my view. Not that there aren’t moral reasons, but that those are not compelling interest. That’s what’s necessary to offset a fundamental right. So the first question is, is there a right at stake? And if there is not a right at stake then a moral reason is sufficient. So for example, sunbathing in the nude on Lake Michigan is not a right, and therefore a moral objection to nudity is sufficient to justify such a law. But a moral reason for suppressing free speech, because you are morally offended by somebody’s views is not sufficient. Or a moral reason for treating a racial group or a religious group differently is not sufficient because you’re dealing then with a serious constitutional right. And what the court recognized in Roe is that the interest of the woman in controlling her own destiny in this respect is, itself, a fundamental right, and therefore only a compelling justification would be sufficient. And moral justifications don’t reach that level. So that’s the way that would get analyzed as a legal matter. Audience: Yes, I wonder if you would give us your view on whether any of the decisions being handed down on the trap laws, for example out of Texas, have any effect on this dynamic that you see perhaps playing out in the Supreme Court? Because they seem rather to be universally holding against the trap laws. Right so, this is a series of laws that many states have adopted that are effectively designed not to overrule Roe V. Wade, not to outlaw abortion, but to make abortion extremely difficult. So a typical law, as in Texas for example, that basically said that any facility that performs abortion has to have all of the equipment and accoutrements of an ambulatory surgery center. Even though abortion does not involve any of the risks a surgery center normally addresses. And various waiting period laws of a similar type. And the Supreme Court last year in the Hellerstedt case addressed the constitutionality of a series of these laws from Texas, and these laws have had a devastating effect on access to abortion in the states where they’ve been enacted. And that’s their point. That’s the purpose of them. And it took the number of abortion facilities in a state like Mississippi from 17 to 1. Or in Texas I think it was 56 to 7. And going down. Because most of them couldn’t meet the requirements of the law, and it imposed huge expenses on the facilities to meet these requirements, and they didn’t serve any legitimate purpose. And the Supreme Court, in the Hellerstedt case, in a 5 to 3 decision, because I think Scalia had died already if I’m remembering timing correctly, but with 5 justices in the majority, held those laws were unconstitutional. They basically said that they’re not serving compelling interests and essentially said these are disingenuous, and you can regulate abortion in order to protect the health interests of women in the 2nd trimester but they have to be reasonable regulations that serve a substantial purpose and the court said these do not. And so thankfully for Justice Kennedy, he was willing to continue to stand up for the proposition that abortion cannot be regulated just because the state has a rational justification for it. It has to have a compelling reason to do it. Jim: One more? Audience: How do you see advances in medical technology making it more likely that a fetus can be viable outside of the womb earlier having an effect on either constitutional arguments or rhetoric surrounding the abortion debate? So one of the interesting questions in Roe that the justices talked about was how to figure out how to accommodate the interests of the woman with the competing interests of the state. And what justice Blackmun concluded was that in the first trimester, that the state had no substantial interest in intervening in the decision of the woman. The medical procedure was sufficiently simple straightforward, uncomplicated, that it could be done without any state requirements. In the 2nd trimester, the court said that the state can have reasonable regulations designed to promote the woman’s health. So, for example, a state could require abortion in the 2nd trimester be done by a doctor. In the same way that it can require a tonsillectomy to be done by a doctor. And the court said ‘as long as there’s a reasonable justification and it serves a substantial interest, the state can make health regulations to protect women in that circumstance. The same way they can make health regulations for all of us. And then they said in the 3rd trimester, when at that time the fetus was viable, that the state’s interest then in protecting potential life was sufficiently great that abortion could be prohibited unless necessary to protect the health or life of the woman. But if the fetus could be removed from the woman at that point then the state could require that, rather than killing the fetus. When there was not a health or life reason for it. Now, over time, viability has moved forward. And under the principle of Roe, I think one would say that that continues to move forward and I think that even the justices who decided Roe would accept that proposition. If the fetus in fact can be removed from the woman and can survive then, that the state can… preferred that outcome, in the same way it can to a born child. And at some point it’s conceivable, down the road, that you can take an embryo and remove it. And that would be problematic, you know, because there are lots of women who wouldn’t… there want not only not to be pregnant, they don’t want to have a responsibility to have a child they didn’t want, even the moral responsibility for a child they didn’t want. But we’re still 50 years away from that. But we’re moving in that direction, absolutely. Audience: …it isn’t even a question. It’s actually asking you to reflect on something that I learned just this week maybe a little knowledge is a dangerous thing. But in the Old Testament, and I know we’re not supposed to be basing anything on religious reasons but in the Old Testament, the statement is that the fetus, they don’t use that word, but in all the rules about when it is murder, it is not murder if a woman miscarries and someone has caused the woman to miscarry. So those who are reading the Bible and saying they want to base their argument on the Bible they’re being inconsistent if they’re somehow making a statement that this is murder. In all of law the fetus has never been considered a person. So if you shoot somebody and kill them, historically, and that caused the death of the fetus you didn’t kill the fetus. You assaulted the woman. And you could be prosecuted for that act, but the fetus was irrelevant. So the law has never considered the fetus a person. And you’re right. The Bible, the Old Testament did not… and abortion was not illegal in ancient Israel. It wasn’t easy to do in those days, because it obviously had to be done in pretty crude ways but it wasn’t illegal, for exactly this reason. And so yeah, the fetus has never been considered a person in the law. And even in the states that basically prohibit abortion, they don’t consider fetuses people if they’re killed in other ways. Which is kind of weird. I mean, if you’re serious about the belief of a fetus as a human, then you should obviously treat the fetus as a human if something else happens to it. And yet no state does that. And never has. Jim: Our colleague Marshall Sahlins likes to point out that the laws about citizenship are very much pointing in the same way. It’s where the president is born, not where the president is conceived. Yes. [laughter] That makes it possible for him to be president. Or her to be president. So your talk made me think about a couple of things, because I’m old enough to have lived through a lot of the history, I mean, I don’t go back to Margaret Sanger, but yeah. but one is a movie I remember seeing in the cinema in the 60s, a black and white gritty film with Steve McQueen and Natalie Wood called Love With A Proper Stranger, which was about illegal abortion. I was just wondering, this isn’t a question, but I’ve just been thinking about what effect that might have had on consciousness of that time. It would have been about 1966 or 1967. And the other was your reconstruction of the period around 1980 because I’ve been having this kind of deja vu sense, like many people, and now you’ve given me some details about just what it was that we went through around 1980 and are, in a sense, going through again. It was a wonderful talk, thank you so much, thanks for generosity with the questions. [applause]

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