Abortion

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It is looking extremely likely that the Supreme Court will overturn Roe v. Wade, the case that found that the constitutional right of privacy included abortion. The case has been divisive with many strong opinions advocating for and against it. Abortion, itself, is not an easy subject to tackle, as the emotional impact it carries, tends to blind people to the necessary objective view that the law is suppose to supply. Personal opinion should never dictate the merits of constitutional rights, hence the need for an objective analysis. As it is unlikely that many understand the legal basis behind the Roe decision it is perhaps a good idea to cover it. This will also allow an understanding of what could actually be done in the future to protect privacy rights, while also protecting the unborn.

The right of privacy was born from the 14th Amendment to the US Constitution. The applicable section states, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The Court has found that there are certain fundamental rights that are protected by the Constitution, for example the right to vote, the right to interstate travel, and the various privacy rights which include but are not limited to marriage, parental rights, contraceptives, and abortion. When examining whether a state has infringed upon a protected fundamental right, the Court first determines if the right is being denied to everyone. If so, then it is a due process claim. If the right is only being denied to some individuals, then it is an equal protection issue. Either way the Court will apply strict scrutiny when examining whether the contested law will be upheld. Strict scrutiny means that the law or government action must be necessary to protect a compelling governmental interest. If there are less restrictive means the government can use to achieve the goal, then the contested law will not survive the strict scrutiny analysis.

In regards to abortion, the government has two compelling interests that are in competition: protecting the woman’s health and protecting the fetus. As these interests can be in conflict, the court needed to re-adjust its strict scrutiny analysis and has thus developed a pre-viability rule and a post-viability rule to be used in determining if a law restricting abortion is legal. The court has found that before viability, the state may adopt regulations on abortion as long as they do not place an undue burden (or substantial obstacle) on the woman’s right to obtain an abortion. This undue burden analysis has found that many regulations placed on abortion are legal, such as requiring waiting periods or requiring informed consent, as long as the woman still has the ability to obtain an abortion. After viability the court has found that the government’s interest in the fetus’s life can override the woman’s right to an abortion, however the woman can still obtain an abortion if necessary to protect her own health or safety. As is evident, this approach, although not perfect, has taken into account and has attempted to balance the competing interests of the woman, the fetus, and the government.

Currently, the Court seemingly has determined that abortion should no longer be a protected constitutional right, but instead left to the individual states to decide. This position is untenable. Overturning Roe would lead to a variety of different state laws, some of which will completely disregard any protections for the woman’s health and safety in absolute favour of the fetus. Were this in fact to happen, it would undoubtedly become an equal protection issue as the pregnant woman would essentially become hostage to the state’s desire to protect the life of the unborn fetus. If the fetus’s potential life is weighed as more important than the woman’s life, then obviously they are not seen as equal and a conflict with the 14th Amendment’s equal protection clause arises which  should conceivably return the issue to the Supreme Court. Regardless of your stance on abortion, allowing state’s to prioritize which citizen’s health and safety should be protected at the expense of another citizen’s health and safety is not something that should be recklessly accepted.

Instead abortion should in fact remain a protected fundamental right and the court should apply strict scrutiny when assessing any governmental regulations of it instead of its quasi-strict, viability rule approach. And this is why: the compelling interest of the government is to the health and safety of its citizens, which includes the woman and the fetus. In order to prevent abortion, and thus protect the potential life of the fetus as well as the woman’s health, the government should focus on its citizens receiving accurate sexual education, availability of contraceptives, and easy accessibility to healthcare providers. All of these paths would succeed in decreasing the number of unwanted pregnancies which in turn would severely limit the need for abortion in the first place. These areas of governmental influence would be less restrictive to the woman’s right of privacy, while actually achieving the government’s goal of protecting the health and safety of its citizens, including the unborn fetus’s. Thus, if the Supreme Court were to actually use strict scrutiny while assessing regulations on this fundamental right, it could actually succeed in a way that helps everyone involved, no matter which side of the issue you are on.

Neither side of the abortion debate is actually pro-abortion. It is instead a balancing act between the rights of a woman to control her own body and the potential rights of the fetus. So the solution should never have been one that attempted to pit the rights of one against the rights of the other. Instead the solution should have always been a focus on examining the underlying causes for abortion and what can be done to prevent those causes. Using strict scrutiny should have highlighted the fact that the government has plenty of less restrictive methods to actually achieve its goal. And the court forcing the government to focus on the causes of abortion instead of regulating abortion would actually be a major victory for both sides of the debate. Abortions would be drastically reduced, while also allowing woman to retain their privacy rights and the ability to make decisions about their own bodies without governmental interference. Abortions would still be legal, but would inevitably become a rare occurrence, one that would essentially become the last option in cases necessary to protect the well-being of the woman.