California Forum

Abortion is a constitutional right – an endangered one

Watch women’s rights and pro-choice advocates rally in Modesto

Women's rights and pro-choice advocates rallied in Modesto, California on Tuesday, May 21, 2019. The event was organized by Planned Parenthood Mar Monte, Women's March Modesto and the Democratic Women's Club of Stanislaus County.
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Women's rights and pro-choice advocates rallied in Modesto, California on Tuesday, May 21, 2019. The event was organized by Planned Parenthood Mar Monte, Women's March Modesto and the Democratic Women's Club of Stanislaus County.

The recently adopted state laws prohibiting abortions are unquestionably unconstitutional and will be quickly enjoined by the federal courts. Anti-abortion legislatures have adopted these laws in the hope that the U.S. Supreme Court will reconsider Roe v. Wade.

Since the Roe decision in 1973, the Supreme Court has been clear that women have the right to abortion until the time at which the fetus is viable and can survive on its own outside the womb. This is generally thought to be about the 22nd or 23rd week of pregnancy.

Alabama has adopted a law prohibiting all abortions and punishing doctors who perform abortions with 99-year prison sentences. Several states – Georgia, Kentucky, Mississippi and Ohio – have adopted laws prohibiting abortions after a fetal heartbeat can be detected, which is about the sixth week of pregnancy. Missouri just enacted a law prohibiting abortion after the eighth week of pregnancy. All of these laws are invalid unless and until the Supreme Court overrules Roe and the many cases that have since protected a right to abortion.

This raises two questions: Will the Court overrule Roe, and should the Court do so? As to the former, the consensus among both liberals and conservatives is that there are now five justices on the Court who believe that Roe was wrongly decided: Chief Justice John Roberts and associate justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh.

Opinion

There is no doubt based on their prior opinions and their general lack of concern for precedent that Thomas and Alito will vote to immediately overrule Roe. Perhaps Gorsuch and/or Kavanaugh will be with them. But my instinct is that Roberts will want to move more incrementally.

The Court likely will uphold laws imposing restrictions on abortion that it previously has struck down. These laws would close most clinics in some states by doing things like requiring doctors to have admitting privileges at nearby hospitals or requiring surgical facilities where abortions are performed. In 2016, the Court, in a 5-3 decision, invalidated such a Texas law, but Justice Anthony Kennedy was the fifth vote for the majority and he is now retired.

For now, I think Roberts will be content to allow the lower courts to strike down the most restrictive abortion laws like Alabama’s statute and the fetal heartbeat laws. But I think at some point he will join with the conservatives to overrule Roe.

Roberts never has voted to strike down any restriction on abortion since coming on to the Court in 2005. Each state will then be able to decide for itself whether to allow abortion and over half the states will prohibit them, though abortion will remain legal in places like California, Illinois and New York. Women with money will have access to abortion by traveling to states where it is legal, but poor women and teenagers will be forced to choose between unwanted children and unsafe, back-alley abortions.

Should the Court overrule Roe? I believe that Roe was clearly right as a matter of constitutional law. Since early in the 20th century, the Supreme Court has held that privacy is protected as a fundamental right under the word “liberty” in the due process clauses of the Constitution.

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Erwin Chemerinsky

The Court has protected many basic aspects of personal autonomy under the right to privacy: The right to marry, the right to procreate, the right to custody of one’s children, the right to control the upbringing of one’s children, the right to purchase and use contraceptives, the right to refuse medical treatment, the right to engage in private consensual adult homosexual activity, and others rights as well.

Laws that prohibit abortion infringe a basic aspect of autonomy: the right of a woman to decide for herself whether to bear a child. Forcing a woman to continue a pregnancy against her will is an enormous intrusion on her ability to control her body and her life.

Those who oppose abortion rights argue that the fetus is a person from the moment of conception. But as Roe recognized more than 45 years ago, there is no legal or scientific way to answer the question of when human personhood begins. That is why Roe rightly said that it is a decision left to each woman.

Those who believe that all abortions are murders, of course, have the right to choose not to have abortions. They, however, should not be able to impose their views, often based on their religious beliefs, on those who disagree.

It is estimated that 1 million abortions are performed in the U.S. each year and that one in four women will have an abortion. This is, and should be, their constitutional right.

Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law. He can be contacted at echemerinsky@law.berkeley.edu.

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