Dec. 4, Anthony Colangelo, Professor of Law at the SMU Dallas Dedman School of Law, for a commentary encouraging U.S. Supreme Court justices to consider more than the ‘absolutes’ regarding the debate about abortion as they discuss a Mississippi law. Published in the Washington Examiner under the heading: The Supreme Court should think differently about abortion: https://washex.am/3osF47h
The Supreme Court has taken up the issue of abortion, kicking off yet another round in the abortion debate in this country. The debate centers on the existence of certain rights that each side respectively claims permit abortion on the one hand and prohibit it on the other: namely, a woman’s right to privacy and a fetus’s right to life. Unfortunately, the debate is typically and simplistically cast in terms of absolutes: An absolute right to privacy overrides all other contradictory interests; similarly, an absolute right to life overrides all other contradictory interests.
Indeed, each side goes even further and disputes the very existence of the countervailing right. Conservatives argue that a right to privacy simply does not exist because it appears nowhere in the text of the Constitution, and liberals argue that a right to life simply does not encompass a fetus as a constitutionally cognizable person.
By Anthony Colangelo
The Supreme Court has taken up the issue of abortion, kicking off yet another round in the abortion debate in this country. The debate centers on the existence of certain rights that each side respectively claims permit abortion on the one hand and prohibit it on the other: namely, a woman’s right to privacy and a fetus’s right to life. Unfortunately, the debate is typically and simplistically cast in terms of absolutes: An absolute right to privacy overrides all other contradictory interests; similarly, an absolute right to life overrides all other contradictory interests.
Indeed, each side goes even further and disputes the very existence of the countervailing right. Conservatives argue that a right to privacy simply does not exist because it appears nowhere in the text of the Constitution, and liberals argue that a right to life simply does not encompass a fetus as a constitutionally cognizable person.
As far as present case law goes, the court has largely sided with the liberals, holding that a fetus is not a person deserving of constitutional protection, at least up until viability. And the court has located the existence of the right to privacy in the Constitution’s due process clause, which provides in relevant part that no state shall “deprive any person of life, liberty, or property, without due process of law.” Here, the court has looked to the liberty interest protected by the clause as expanding beyond mere incarceration to encompass a right to privacy, or a right to be let alone. Yet a fair reading of the clause is that it addresses only process, or procedures, involved in the deprivation of a right, which presumably the government may effect so long as it does so through “due process.”
In response, the court has developed the doctrine of “substantive due process,” as opposed to the “procedural due process” that appears on the face of the clause. This doctrine recognizes the existence of certain “unenumerated rights,” rights that are so special and historically grounded that they are deemed worthy of constitutional protection. Think of the right to raise one’s own children. We would be shocked if the state could simply intervene for no reason in that relationship.
But is there a way to think about the abortion question in a manner other than absolutes, such that we may recognize both the right to privacy and the right to life?
An important point must be made about the nature and construction of the Constitution: Unlike some other constitutions, it does not create a hierarchy of rights. For example, the German Constitution places human dignity at the pinnacle of its structure, giving that right the power to override all other rights. By contrast, the U.S. Constitution contemplates trade-offs between rights. For example, the First Amendment’s right to free speech runs out of steam when it runs up against safety, such that one cannot incite an angry mob to violence.
Taking this view, the court could recognize the existence of both the right to privacy and the right to life and balance the two while still making a constitutional judgment on which right prevails in a certain context. This would be a more nuanced and sophisticated analysis that appreciates the importance of both rights instead of just telling one side that its right simply doesn’t exist. It is here that the court would have to make a call: At what point does a women’s privacy right in her own body give way to a fetus’s right to life?
Anthony J. Colangelo is the Robert G. Storey distinguished faculty fellow and professor of law at the Southern Methodist University Dedman School of Law in Dallas.