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Tuesday, March 06, 2007

Overruling Roe v. Wade: A Post in Three Parts. Part III: The End?

There are a number of ways in which an overruling of Roe v. Wade could impact the substantive due process doctrine as a whole. But the one I want to focus on in this third final post of the series is how it would impact the right to bodily integrity.

Specifically, as Eugene Volokh has argued in a forthcoming Harvard Law Review article, the life and health exceptions required by Roe, Planned Parenthood v. Casey, and Stenberg v. Carhart demonstrate that the Supreme Court has actually recognized two kinds of abortion rights – a right to choose abortion as a matter of reproductive choice, and a right to choose abortion as a matter of “medical self-defense,” i.e., when one’s life or health would otherwise be endangered. Relatedly, Michael Dorf suggested in a Findlaw column about a year ago that even if Roe fell, the serious constitutional questions would remain to be resolved whether individuals have a right to access abortion to protect their own health. And I (similarly but much less competently) argue in an article that I am just about to submit for publication (sorry, no SSRN link yet, but I am happy to send a draft to anyone who is interested), that there is a constitutional right to make medical treatment choices embodied partly in the abortion cases, especially Carhart, which made clear that women have a right to choose the safest method of abortion.

If Roe is overruled – and I realize it is difficult to analyze this issue without knowing exactly how Roe is overruled – would there be still be a right to choose abortion when it is necessary for health reasons (however defined)? If the answer is yes, this suggests that there is a freestanding constitutional right to protect one’s health – which is something I and some others argue, but not, by any means, a widely-accepted proposition. If the answer is no, this suggests that women seeking abortions have a right to protect their health that no other individual possesses – a right not only to have an abortion when medically necessary (per Roe) but also a right to have an abortion by the safest method available (per Carhart). Can it possibly be true that the Supreme Court has been favoring women seeking abortions over all other individuals in this way for all these years?

Although concerns about women’s health have motivated the pro-choice movement from the beginning, and although those concerns were front and center in the parties’ arguments in Griswold v. Connecticut, Eisenstadt v. Baird, and Roe v. Wade, the Supreme Court has said relatively little about why this health exception requirement (as opposed to the right to choose abortion in general) exists and how it is constitutionally justified.

Part I of this series can be found here.
Part II of this series can be found here.

Posted by Jessie Hill on March 6, 2007 at 07:40 AM in Constitutional thoughts | Permalink

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Jack Balin over at Balkinization posted an article positing a similiar dual right of abortion a few weeks ago. It's at . He too notes the dual rights: the right to be free from the State prohibiting a medically necessary procedure, as well as the right to be free from State compulsion to bear a child (using class legislation in part of the analysis). It's a good article, and I look forward to comparing it to Eugene Volokh's and yours. Could I please get a draft?

Posted by: Jeffrey Kiok | Mar 6, 2007 11:19:48 AM

If Roe is overruled – and I realize it is difficult to analyze this issue without knowing exactly how Roe is overruled – would there be still be a right to choose abortion when it is necessary for health reasons (however defined)A constitutionally-protected right, that is. Whether there remains a legal right to obtain an abortion post-Roe surely becomes primarily a question of state Constitutional and statutory law.

Posted by: Simon | Mar 6, 2007 12:00:49 PM

Forget where I found this, thought it interesting:

The law is M.G.L.A . 272 § 19 and reads:

"Whoever, with intent to procure the miscarriage of a woman, unlawfully administers to her, or advises or prescribes for her, or causes any poison, drug, medicine or other noxious thing to be taken by her or, with the like intent, unlawfully uses any instrument or other means whatever, or, with like intent, aids or assists therein, shall, if she dies in consequence thereof, be punished by imprisonment in the state prison for not less than five nor more than twenty years; and, if she does not die in consequence thereof, by imprisonment in the state prison for not more than seven years and by a fine of not more than two thousand dollars."

This is a nineteenth century law that was never stricken from the books when abortion became legal, and has rarely been used in recent years. Nonetheless, prosecutors have used it to confine Ms. Abreu for three days while her impoverished family came up with some $15,000 bail.

Posted by: Bluey Zarsoff | Mar 7, 2007 8:55:21 AM

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