Academic journal article Boston University Law Review

Abortion Access in an Era of Constitutional Infidelity

Academic journal article Boston University Law Review

Abortion Access in an Era of Constitutional Infidelity

Article excerpt


Abner Greene's Against Obligation1 and Louis Michael Seidman's On Constitutional Disobedience2 offer provocative, subversive, and frequently convincing arguments against wholesale fidelity to the Constitution. Greene makes the case that individuals, at times, have no duty to obey the Constitution as it has been interpreted and articulates a methodology for how the government should accommodate these legitimate acts of disobedience. Seidman, however, makes the case that we should abandon the "pernicious myth" that we are obligated to obey the Constitution at all.3 He argues that if the fiction of constitutional obedience was jettisoned altogether, the national discourse about the issues that divide us -- like the legality of gun ownership, affirmative action, and same-sex marriage -- would concern the merits of various approaches to governmental regulation of the issues.4 The discourse would not hover around the question of whether a particular governmental regulation comports with the mandates of the Constitution. The latter, existing discourse is useless and frequently counterproductive, according to Seidman, as it stymies "the open-ended and unfettered dialogue that is the hallmark of a free society."5

This Essay asks a simple, but important, question: What will happen to abortion access in an era of constitutional infidelity? Will women continue to be able to terminate unwanted pregnancies if there is no obligation to follow the dictates of the Constitution? How one answers the question may determine whether Greene's and Seidman's visions of constitutional defiance should be advocated, pursued, and implemented. That is, if one believes that governments should not be able to compromise a woman's ability to undergo an abortion procedure -- even if a majority of citizens believe that no woman (or only some women, in certain circumstances) should be able to have an abortion -- then one may find Greene's and Seidman's proposals unattractive. And quite terrifying.

At the outset, I should note that many argue that, with respect to abortion rights, we already live in an era of constitutional infidelity. That is, many critics of the right to abortion assert that there is nothing in the Constitution that so much as implies that it is illegitimate for governments to regulate, and even proscribe, abortion.6 The Court in Roe v. Wade7 was just making stuff up, they say.8 Accordingly, every time that a federal court strikes down an abortion regulation as an infringement on an individual's constitutional right to an abortion, it is not an act of obedience to the Constitution, but rather an act of disobedience to the Constitution insofar as the document allows states to reasonably regulate society, with the exception of a few choice areas that, through the Bill of Rights, have been exempted from this general maxim.9

Moreover, Planned Parenthood of Southeastern Pennsylvania v. Casey,10 which affirmed the "central holding" of Roe,11 did little better than Roe in the way of convincing naysayers that the Constitution provides for an individual abortion right.12 Instead of plumbing the depths of constitutional text or endeavoring to divine the Framers' original meaning or intent in using the phrase "due process of law," Casey fretted over stare decisis.13 It is not unfair to argue that the Court seemed more concerned with what would happen to the perception of the Court's legitimacy if it overturned Roe than with whether Roe was correctly decided in the first place.14

Nevertheless, at present, we have an abortion right that, by hook or crook, enjoys some level of constitutional protection.15 As a result, women have access to legal abortion, and those adult women16 with the ability to pay17 can terminate an unwanted pregnancy before viability. The question, then, is: What if we accepted Seidman's and Greene's arguments that we really do not have a duty to obey the Constitution? Would women still be able to terminate pregnancies that they no longer wish to carry? …

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