THE EQUAL PROTECTION CLAUSE
David Mills has made some interesting comments on my post arguing for there being a constitutional right to abortion in the 14th Amendment's "equal protection" clause. He thinks a better constitutional text for this would be the Third Amendment (on the quartering of soldiers in someone's house), which implicitly suggests a right to privacy that could include the right to have an abortion.
I thought I should respond to one of his comments in a separate post. Here's the comment:
"The equal protection clause is just one more amendment that tries to put a round peg in a square hole. Equality implies a comparison between two similar things. In the case of a woman applying to membership with the bar she can be compared with men. In the case of homosexual couples, they can be compared with heterosexual couples.
"But in the case of pregnancy, what is the thing you would compare it to? Well nothing, unless you want to compare a fetus with a tumor, which as you point out does not have the possibility of becoming a person like a fetus does.
"So that is why I think the 3rd amendment should be looked at as by far the best amendment to support abortion. No other amendment makes as good a case for the right to privacy.
"And I really don't like the idea of abortion being a state matter. Under amendment 3, it is difficult to see how a state could whittle away the right."
For my response, I can quote the words of Jack Balkin ("Abortion and Original Meaning," 322-23):
"One might argue that, because only women can become pregnant, laws restricting abortion do not violate sex equality, because they do not treat women differently from similarly situated men. There are no similarly situated men. The principle of equal citizenship, however, is not limited to the requirement that laws be formally equal in this way. The relevant question is not whether men and women are different in their capacity to bear children, but the difference that this difference should be allowed to make in terms of women's status in society and their enjoyment of basic rights of citizenship. The text of the Fourteenth Amendment, and principles underlying the Amendment stand for the proposition that the state may not create or maintain a lower caste of citizens, impose second-class citizenship, or effect subordination of a social group through law. When the state uses women's capacity to become pregnant as a lever to subordinate women, assign them a second class status in society, or deny them full and equal enjoyment of their rights of citizenship, it violates the equal citizenship principle. It may not use pregnancy as a device to deny women equal citizenship or subordinate women precisely because only women can get pregnant."
So, for example, I assume that we would all agree that prohibiting women from admission to law schools and from practicing law, as was done in the 19th century, was a denial of their equal rights. Now, in many law schools, there are as many women as men; and women have excelled in the practice of law.
But for many of those women, their success as students and lawyers in achieving equality with men in their careers has depended on their being free to delay motherhood when it would interfere with their careers. For many of these women, if they had been denied the right to abortion and thus forced to become mothers early in life, and forced to have many children, that would have prevented them from achieving success in the legal profession equal to that of men. Thus, laws that criminalize abortion tend to reinforce the subordination of women to men, and in this way, they violate the Equal Protection Clause of the Fourteenth Amendment.
I have written previously about how women in a liberal society naturally desire to become a mother, but they need to balance this desire with other natural desires. When women pursue professional careers, and they want to have children, they have to decide how to organize their lives to balance one desire with another. In the United States, most women (80% to 90%) will become mothers before they reach the end of their reproductive lives; but many of these women decide to delay motherhood until they have become established in their professional careers. For many of these women, the freedom to decide on abortion is an important part of their decision-making, which is taken away from them by laws forbidding abortion.
ALITO'S DECEPTION REVEALS HIS POLITICAL PARTISANSHIP
At some points in his opinion overturning Roe, Justice Samuel Alito resorts to a rhetoric of deception that shows he is writing as a political partisan advancing a policy preference rather than as a judge interpreting the law.
It is true, as he says, that the "right to abortion" is never explicitly mentioned in the Constitution. But he admits that, of course, the Supreme Court has recognized many constitutional rights that are not explicitly enumerated in the Constitution. The Court must do this to comply with the 9th Amendment's declaration that "the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."
The question then is how does the Court identify those rights "retained by the people" but not enumerated in the Constitution? The answer must be that these rights can be inferred as implicit in the original meaning of the constitutional text. But then, again, the Court looks for some help in interpreting that original meaning.
Alito's answer is to appeal to a doctrine stated in the opinion in Washington v. Glucksberg (1997). The question in Glucksberg was whether a Washington state law criminalizing assisted-suicide for terminally ill patients was an unconstitutional violation of a person's right implicit in the Due Process Clause of the 14th Amendment to make fundamental decisions about their life and health. The Court unanimously said no. Their reasoning was that the Court recognized rights as implicit in the Fourteenth Amendment only when these rights were "so deeply rooted in our history and traditions, or so fundamental to our concept of constitutionally ordered liberty, that they are protected by the Fourteenth Amendment" (727).
Alito appeals to this language in Glucksberg in arguing that there is no constitutional right to abortion because it is not "deeply rooted in our history and traditions." (See page 5 of his opinion.)
But in the oral arguments on the Dobbs case in December, when Alito made this argument, one of the lawyers pointed out to Alito that this passage in the Glucksberg opinion has a footnote--note 19 on page 727--identifying the decision in Roe v. Wade as one of the many decisions of the Court that rightly identified rights "deeply rooted in our history and traditions," because in the common law, abortion was not a crime when it was done before "quickening"--that is, before the mother felt the fetus moving in her womb. The states that began towards the middle of the 19th century to criminalize abortion at every stage of pregnancy were violating this deeply rooted common-law tradition of allowing abortion before quickening. (See pages 75-76 of the oral arguments.)
That note 19 in Glucksberg also identifies the right to use contraceptives (Griswold) and the right to interracial marriage (Loving v. Virginia) as examples of constitutional rights that are not explicitly enumerated in the Constitution, but which can recognized as implicit in the original meaning of the Fourteenth Amendment, just like the right to abortion.
Notice that in his opinion (page 5), Alito remains completely silent about this point--that he was distorting the decision in Glucksberg by claiming that its standard of constitutional interpretation would support overturning Roe. This kind of deceptive distortion of the law is characteristic of a political partisan who has a policy preference against abortion rather than a judge interpreting the law.
This is one of many flaws in Alito's opinion that reveal it to be an exercise in raw political power rather than an impartial interpretation of the law.