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Monday, July 11, 2016

Thoughts on Reason-Based Regulation of Reproductive Decision-Making: Part I

This post and the next (Part II) are drawn from my contribution to the forthcoming edited volume Law, Religion, and Health in the United States (Holly Fernandez Lynch, I. Glenn Cohen & Elizabeth Sepper eds., Cambridge University Press 2017).

In the wake of Whole Woman’s Health, what will be the future strategy of anti-abortion activists? One possibility, for which there is at least some evidence, is that they will turn away from working to enact restrictions justified by purported health and safety benefits and instead focus on restrictions that advance a claimed state interest in the life and/or dignity of the fetus.

Restrictions that fall into this category include reason-based bans on abortion—laws forbidding abortions that are sought for particular reasons, such as fetal abnormality or sex selection. It may be easier for such restrictions to pass constitutional muster after Whole Woman’s Health v. Hellerstedt, because, given the intangible nature of the dignitary interest supporting them, states will not bear the onus of justifying them with hard medical or scientific evidence. Abortion opponents may also reason that such justifications are more likely to appeal to Justice Kennedy, who has shown concern for various kinds of dignitary harm, including to the fetus (see Gonzales v. Carhart).

It is therefore worth considering whether such bans (at least one of which—Indiana’s—has recently been challenged) are constitutional. In the remainder of this post, I’ll analyze that question. In the next post, I’ll consider a different form of reason-based regulation of reproduction: state laws that distinguish between therapeutic and non-therapeutic uses of contraception for purposes of insurance coverage mandates.

The law often has something to say about what constitutes a legally acceptable reason for certain conduct. Indeed, sometimes the motivation for a person’s actions can make the difference between legality and illegality. For example, a hate crime is one that is committed because of illicit bias; a crime that is not committed out of such a motivation cannot constitute a hate crime. Similarly, under the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA), actions that are taken for religious reasons are specially protected, whereas the same actions could be outlawed when driven by secular reasons.

But constitutional law has marked some areas off-limits for governmental regulation of individual decision-making. For example, at the same time that religious reasons are valorized, they are also protected by a zone of noninterference, as courts largely defer to individuals on the content of their beliefs. In Burwell v. Hobby Lobby, the Supreme Court took an extremely deferential stance toward the plaintiffs’ beliefs, in that it declined to examine closely the connection between the asserted religious belief—that abortion and complicity in abortion are morally wrong—and the conduct the plaintiffs wished to avoid—providing their employees with health care coverage that included contraceptives that the plaintiffs characterized as abortifacients. Likewise, when applying the “ministerial exception,” which protects religious organizations from liability in certain hiring and firing decisions and which is required by the Free Exercise and Establishment Clauses of the First Amendment, courts may not examine the actual reason for the employment decision to determine whether it is in fact religious, or whether it is a pretext for discrimination. It therefore appears that there is a zone of privacy around religious deliberation, grounded at least in part in the First Amendment, similar to the zone of privacy that protects familial and reproductive decision-making under the Fourteenth Amendment.

Since Griswold v. Connecticut, the right to make reproductive health care decisions, too, has been framed in terms of a right to privacy. In the Fourteenth Amendment substantive due process context, the right to privacy includes both a sense of spatial sanctity and decision-making autonomy.  The decision-making autonomy aspect of privacy most directly implicates the government’s ability to influence, and pass judgment on, the reasons on which individuals rely for their most important and intimate decisions. As the joint opinion in Planned Parenthood v. Casey famously declared, “At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” This language highlights the protected nature of the decision-making process. Thus, although the “undue burden” standard established by Casey for reviewing abortion restrictions seemingly focuses primarily on the outcome of the challenged regulation—whether it places a “substantial obstacle” in the woman’s path and prevents her from accessing an abortion that she has chosen—it is nonetheless embedded in a broader privacy framework that connects it to the concept of decisional autonomy.

Given this decisional autonomy framework, the possibility that the government might regulate the reasons for which an abortion may be obtained contradicts Roe v. Wade’s, as well as Casey’s, reasoning. As Jaime King has pointed out, the Supreme Court’s reasoning in Roe and Casey emphasized the burdens of unwanted pregnancy as the rationale for protecting reproductive choice, but at no point did the Court suggest that only certain reasons for not wanting the pregnancy were valid ones. Thus, in recognizing a right to reproductive privacy, the Supreme Court has suggested that the government cannot commandeer the private decision-making process around contraception, abortion, and fertility. Indeed, as Carol Sanger has argued, the right to non-interference in reproductive decision-making arguably implies a right to non-interference with the decision-making process as well. (Indeed, in countries outside the U.S. where abortion is not governed by a privacy framework, such as England, governmental regulation based on reasons for which an abortion is sought is much more prevalent.)

At the same time, it is worth noting that Roe demonstrated some discomfort with the notion of "abortion on demand." And the Supreme Court has emphasized that the government has a role to play in ensuring that the woman’s decision is well-informed, going so far as to insist that the state can try to persuade the woman to choose childbirth over abortion. This suggests that the Supreme Court believes the state’s role may extend beyond merely giving the woman factual information to actually putting a thumb on the scale of her deliberations.

Nonetheless, much as the Supreme Court may appear to accept a role for the state in encouraging deliberation, the structure and logic of the decisional privacy right run counter to the notion that the government may actually control or commandeer the individuals’ reasoning process. The fact that religious or spiritual beliefs may form part of the reasoning process, as implied by Casey, may further strengthen the notion that the deliberation itself must be immune from governmental interference, because religious beliefs, too, are specially immunized from legal control. There is therefore a difference between deliberation-forcing mechanisms, such as reasonable informed consent requirements, and coercion, such as taking abortion off-limits altogether when it is sought for certain reasons. And although courts have sometimes upheld even ideological speech requirements, they do not cross the line into directing the result or the path of the woman’s deliberations, as opposed to seeking to influence them.

This logic thus places on questionable constitutional ground the recent spate of laws forbidding abortions for particular reasons, such as sex selection or fetal anomaly. Because they not only regulate conduct protected by the constitutional right to privacy but also directly regulate the deliberative process, these laws should be found unconstitutional under the Roe-Casey line of cases.

Posted by Jessie Hill on July 11, 2016 at 05:36 AM | Permalink


I wonder if there could be a free-speech argument here. It might be foreclosed by Mitchell (rejecting a free-speech challenge to a bias-enhancement statute) and the existence of employment-discrimination laws. But perhaps the First Amendment prohibits government inquiry into the motive for engaging in otherwise constitutionally protected activity. For example, we don't ask why Hustler magazine makes fun of Jerry Falwell in an ad parody (whether it is for "legitimate" criticism or just to be mean). And we would not ask why an African-American wanted to attend a newly desegregated school. So why should we ask why someone wants to have or not have a child.

Posted by: Howard Wasserman | Jul 11, 2016 4:08:42 PM

Doubt very seriously. Abortion = 14th amendment. Speech = 1st amendment. Thoughts are not speech...unless you're psychic.

Posted by: anon | Jul 12, 2016 7:29:52 PM

It seems to me that this sort of constitutional prohibition on inquiring into the reason for an abortion could put in jeopardy exceptions to abortion laws, like those exceptions in cases of rape or incest. If a State bans abortion after 24 weeks, except in the case of rape, that law would be premised (I assume) on the judgment that having an abortion after a rape is a better *reason* to have an abortion and as such should be permitted even after viability. In other words, women pregnant at 24 weeks who had not been raped would be discriminated against--in your view--because their reason for aborting the baby isn't rape.

Posted by: Mitch | Jul 13, 2016 5:17:56 PM

Howard, I do think it there First Amendment overtones here, but we could also say that we don't question these motives because there is a privacy right that applies to other sorts of decisions as well.

Mitch, that's an interesting point, but I also think it's different in the post-viability context, which is where these exceptions apply. If the right to non-interference with one's reasoning process is an aspect of the right to privacy, you could argue that the privacy right doesn't really apply meaningfully post-viability because the government's interest in the fetus is compelling at that point. So if the state can ban abortion altogether post-viability, it can also ban it for certain reasons (the exact opposite is true pre-viability). Interestingly, the Supreme Court has never really made it clear why there constitutionally must be exceptions for the life and health of the woman even post-viability, but perhaps those requirements are grounded in the woman's bodily integrity right rather than her privacy right.

Posted by: Jessie Hill | Jul 14, 2016 3:46:59 AM

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