State Abortion Bans are Unconstitutional as Well as Barbaric
Original published 8/21/24 on DavidNewhoff.com
It is impossible to miss the predictably horrific results of state abortion bans that went into effect after the Dobbs decision. Setting aside, for the moment, the subject of “elective” abortion of an unwanted pregnancy, anyone with even basic understanding about the precarity of reproductive health could have foreseen the terrible stories making headlines—women presenting with troubled pregnancies, forced to endure acute, lifetime traumas solely because access to even emergency abortion was denied in their states.
Speaking as the father of three prematurely born kids, as the spouse of a woman who had multiple reproductive health issues, and as an occasional freelance writer about reproductive health, I feel confident saying that childbearing is a perilous enterprise. Without the intervention of modern medicine, the rate of death or severe adverse effects associated with pregnancy and carrying a baby to term would be statistically intolerable in an “advanced” society like the United States.
Yet, lawmakers in several states, seemingly uninformed or unconcerned about the many ways pregnancy can kill mother and/or infant, decided arbitrarily that denying nearly all access to abortion fulfills the state’s obligation to “protect life.” Notwithstanding the implication of a First Amendment violation (i.e., that these laws assert a religious rather than a scientific understanding of “life”), denying access to abortion in exigent circumstances not only violates the woman’s rights but also fosters a legal paradox by first asserting and then violating the alleged rights of the infant.
As a threshold matter, the state abortion ban laws should not survive a facial challenge that they violate a woman’s (if not a whole family’s) rights under the Ninth Amendment. The right to make medical decisions clearly falls under the “rights…retained by the people,” and medical information is held to be so personal that the Heath and Human Services privacy rule extends even to spouses and other family members. The only way the states’ most aggressive abortion laws can overcome a facial challenge is to argue a compelling interest in “protecting life,” but especially in exigent circumstances, this is exactly what the state fails to do.
The Legal Paradox
To speak precisely, the anti-abortion legislatures can only assert a compelling interest in protecting “persons” under the 14th Amendment. There is no statutory definition of “persons” who are yet unborn, though one can cite common law precedent, including the uncontroversial limitations on elective abortion, to argue that “personhood” begins at viability. While certain politicians advocate for statutory protection of “personhood” beginning at conception, this is legally untenable if for no other reason than that it is scientifically unfounded.
By overstating the rights of the unborn “person,” the state abortion bans overlook the contradiction this creates with the administration of a citizen’s rights, which generally begins at birth, not several months before birth. All rights, obligations, and privileges are pegged to a citizen’s date of birth, and “competency” to enforce one’s rights begins at legal adulthood, or 18 years to the day after one’s birth. Prior to legal “competency,” a minor’s rights are enforced by guardians, beginning with his or her natural parents. The state cannot stand as the “next friend” advocate for a minor child without following a civil procedure to disqualify parents, next of kin, et al. Thus, the state conjures a legal paradox when it presumes to make decisions for the infant in exigent circumstances involving a troubled pregnancy, late-stage miscarriage, etc.
In the most extreme circumstances, which have already occurred since Dobbs, the infant’s death is imminent, and either the mother’s life or long-term health is in peril without access to an emergency abortion. In these situations, women are at risk of experiencing a range of adverse effects, including permanent infertility, while the infants may endure a long-suffering death. It is inconceivable that any strangers should insinuate themselves in this tragic and intensely personal experience for a family, yet the state barges into the sanctity of the hospital room without any authority to do so, offending both decency and the Constitution.
Not only is the state’s prohibition of the emergency abortion an egregious violation of the woman’s right to control her own fate, but it is also a violation of the infant’s rights during its brief postpartum existence. Having asserted the prenatal “personhood” of the infant, the state, without obtaining the authority to act as the child’s “next friend,” unlawfully arrogates to itself the right to choose the manner of his or her inexorable death. This result is as constitutionally unsupportable as it is morally depraved.
Of course, the most heartbreaking stories involving exigent abortion merely highlight the dichotomy the states foster when they presume to “protect the unborn” in a process that, as mentioned, is fraught with danger. Childbearing “as God would have it” is a medical obstacle course filled with lava pits and monsters. For instance, “God” created a tiny pathogen called Mycoplasma Genitalium which, left untreated, can cause several adverse pregnancy events and infertility, but which has only been clinically detectable since 2019.
M. genitalium is just one of hundreds of factors in the contemporary OB/GYN playbook that belie all the “history and tradition” bullshit Justice Alito used to package the Dobbs decision. The historicism bloating that opinion is irrelevant filler surrounding an otherwise tenable unraveling of Roe’s basic reasoning. Roe was poorly decided by finding a right of privacy in the penumbra of the Constitution, but this does not mean Alito et al. are correct in their misadventure through ancient “history” as a basis to shruggingly pass the subject on as a “matter for the states.”
Statutory protection of at-conception “personhood” will not cure the pardaoxes the states have created for themselves, but even if it could, that legislative intent must fail as a violation of the establishment clause. The medical community provides ample consensus about the viability of a gestating fetus, and limits on elective abortion in the still-reasonable states remain aligned with that consensus. Any argument that “personhood” subsists prior to viability can find no authority other than selective interpretations of Scripture. Thus, the argument is facially unconstitutional.
Of course, nearly all anti-abortion initiatives—from their rhetoric to their funding—are organized and animated by religious organizations. More damning, these efforts generally emanate from Christian denominations, including parties who advocate a national religion in defiance of the establishment clause. It is more than reasonable to view the anti-abortion agenda as theocratic when so many of its proponents openly state and reiterate a view that “God’s law” should supersede man’s law. And that view is patently consistent with the irreconcilable contradiction in which even the doomed infant is denied the most humane death possible.
The simple analysis must find that the right to access an abortion need not be explicitly stated in the Constitution any more than the right to eat a bowl of chicken soup. The right to make personal and medical decisions need not sound in any amendment other than the Ninth, and there is no need to decide the question as one of equal protection. The state simply has no legal basis for intervening one step beyond the limits that broadly existed under Roe—and those limits should be harmonized across all states as a matter of ordered justice.