In the course of this weeks readings, I had a scary moment. It occurred in the course of reading Casey v Planned Parenthood, in particular the section of dissent written by Rehnquist, White, Scalia, and Thomas. The scary moment was this: I agreed with many of their arguments (though not their conclusion). I thought such a day would never come.
In their view of the case, the right to abort a fetus as a fundamental right was poorly based on the right to privacy and a complex trimester system. I concur, because I found the sort of logic used in Griswold v CT and Roe v Wade extremely shaky and derived. This concerns me, because unlike Scalia et al, I think that the right to terminate a pregnancy is vital to a woman's pursuit of liberty.
I also agreed with their assessment that the standard of "undue burden" is an unclear one for the practice of law. "To evaluate abortion decisions under that standard, judges will have to make the subjective, unguided determination whether the regulations place "substantial obstacles" in the path of a woman seeking an abortion, undoubtedly engendering a variety of conflicting views."
This passage in particular resonated with me, because it frames the questions and protests I experienced in the course of reading the Webster case. So requiring husbands to be notified is an undue burden because for many women it would prevent their access to abortion services, yet regulations that require parental notification or ban state facilities and medical funding to be utilized for a woman's legal right to the medical procedure of abortion (which also make abortion impossible for many women) are not an undue burden? Why not?
Yes, I understand the argument that not using federal or state funds, or public state facilities, for abortion procedures is justified because it doesn't involve state interference in the private option, whereas husband notification does. However I do not find this distinction a compelling one. The differentiation is acknowledged by the court to have the same effect of preventing womens access to abortion which is considered unconstitutional in one case and not in the other (in fact, it is often acknowledged that it may make obtaining abortion "impossible" for some). And I feel certain that the same sort of arguments would not be considered logical if ever applied to other sorts of medical procedures.
This fits into Dorothy Roberts discussion of positive versus negative liberty. The right to abortion is strictly upheld as one of negative liberty. The state can't interfere to deprive individuals of that procedure which is tied to a woman's liberty, but they also are seen as having no duty to make that liberty accessible for the pursuit of all. So what you end up with is liberty and justice for some, but not others. Too bad the Pledge of Allegiance has no legal bearing...
The problem with all of this seems to me to go back to the fact that none of these issues are explicitly dealt with in the constitution. I remember reading an account that many feminist activists of the '70s, in retrospect wish that the right to abortion had been accomplished through legislation rather than at the Supreme Court (I believe this was in Susan Faludi's Backlash, although I'm not certain of that). Yet this seemed incorrect to me to, because while it may have established greater popular support, legislation is more changeable than court decision.
I really, vehemently believe that the option to terminate a pregnancy ought to be a protected right of women. And it occurred to me more than once over the course of reading these cases that such a right ought to be expressed explicitly. In considering this, I was struck anew by the fact that women had no voice and were not especially considered in the drafting of our Bill of Rights - it is a document without us in mind. Although American government is deeply opposed to change, the best option I believe would be to work to see that womens reproductive rights were legislated into a constitutional amendment - because that is where, to me, this issue seems to properly belong. Yet without that explicit statement the issue of abortion regulation becomes sunk in a quagmire of vague terms (like "compelling state interest in potential life" - did anyone else find that creepy?) and is not adequately protected.
So that is what my long-term goal would be, as a leader of a reproductive rights organization. However, in the present political climate I recognize that this would be difficult and would likely focus more on protecting the current structure which allows women access to legal abortion.