Digital Liberties and Roe v Wade
The case for a Convention of the States
You might think the following is found in Justice Samuel Alito’s recent opinion overturning Roe v Wade (emphases added):
On the basis of elements such as these, appellant and some amici argue that the woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree.
It isn’t. This is from Justice Harry Blackmun’s decision in Roe v Wade itself (at page 153).
The landscape of freedom
While these times might feel unprecedented, we have been here before. What is so disorienting is how far removed the realities of American life have become from what we otherwise believe it means to be free. This is why the metaphor of a “landmark” is so important when talking about Supreme Court decisions like Roe v Wade and Dobbs v Jackson Women's Health Organization. We navigate life as free people by taking note of landmarks, just as if we were otherwise navigating travel. When the landmarks are all of a sudden stripped away, we are left lost.
Opportunistic debt collection practices inflicted upon Revolutionary War veterans precipitated the Daniel Shays Rebellion shortly after winning our independence from England. We saw much of the same conduct during the Great Financial Crisis when Wall Street took advantage of “non-judicial foreclosure” in certain states to fraudulently foreclose on American homeowners - many of whom had never missed a mortgage payment.1
The integrity of property records is a landmark in the landscape of freedom. There is no creation of wealth or formation of capital without land ownership. Yet for those of us who feel strongly about having such a basic landmark uprooted, we must take care to nurture some self-awareness. We have neighbors who feel exactly the same as Roe v Wade. An important landmark in the landscape of freedom for American women has been uprooted.
Roe v Wade & what the Court wanted to avoid
It is commonly noted that a large majority of Americans did not want Roe v Wade overturned. But when asked if they thought “...the woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses,” (quoting the Roe decision as noted above) an equal or even larger percentage (depending on how the question is posed) disagree.2 Unfortunately, over time Roe v Wade was interpreted such that it guaranteed the right to abortion under any circumstance - the very proposition with which the Roe Court itself expressly disagreed.
Following shortly after the above-quoted paragraph, the Roe Court was attempting to isolate a place in time during a pregnancy at which the state’s interest in protecting “potential life” began.
We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified, and must be considered against important state interests in regulation. (page 155)
The Roe Court was also trying to locate this right of personal privacy in the Court’s traditional efforts to determine whether an “implied” right was fundamental to “ordered liberty.” Justice Alito speaks extensively to this tradition in the Dobbs decision. In Roe, the Court notes: “Where certain ‘fundamental rights’ are involved, the Court has held that regulation limiting these rights may be justified only by a ‘compelling state interest’.” Traditionally, if the Court determines a state’s interests to be “compelling,” it then turns to the question of whether the state’s restrictions are limited only to what is necessary to further those interests.
Roe and Dobbs share important agreements
When reading Roe v Wade and the the Dobbs decision together, it is striking how much agreement can be found. Roe accepted the premise that the state had - at some point - a compelling interest in protecting “potential life.” There were only two questions: When does that interest start? And what limitations will states be expected to honor in restricting abortion?
The current Court’s majority disagrees with Roe principally in its finding that the privacy right surrounding the termination of a pregnancy was a right “fundamental to ordered liberty” and as such is protected by the 14th Amendment. As a result, when a state restricts abortion, this “strict scrutiny” test of compelling government interests and the least restrictive means to uphold those interests does not come into play.
Chief Justice John Roberts agreed that the Missouri law should be allowed to stand, but did not want to go so far as to overturn Roe (and a related precedent in Casey v Planned Parenthood). Justice Roberts’ instincts were sound in that he saw Roe v Wade as the landmark that it was. Indeed, one can argue that a “conservative” approach to Roe would be one where it was allowed to “die the death of a thousand cuts.” But Alito was also correct: Roe located the right to an abortion in the assumption that such was “fundamental to ordered liberty” - in the face of a complete absence of any historical reasoning to support such a claim.
The Ultimate Question: So What?
What rights are “fundamental to ordered liberty?” While we might disagree on the answer, one thing is certain: It is for us to determine, not the Courts, not the Legislature, and not the Executive. It is also certain: There is only one way to do this - to amend the Constitution that “We the People” ordained so as to form “a more perfect union” and to ensure - among other things - “domestic tranquility.”
If we lack one thing today it is that “domestic tranquility.” We can, however, recover it.
For my Substack readers, you can review my proposed Digital Liberties Amendment (this article will also appear there) to consider whether we need to revoke Congress’ authority to coin money and regulate its value, and to say once and for all that the creation and use of our own preferred private legal tender (e.g. crypto currencies on a Blockchain public ledger) is, in fact, a right fundamental to ordered liberty.
But here I want to lay out a possible resolution to our current consternation over women’s rights. The first requirement is to state explicitly in the Constitution how it is that we believe a woman’s bodily autonomy is a right “fundamental to ordered liberty.” The Roe Court failed in this effort because it required an exception for the “health” of the woman that later courts ruled was so expansive that Roe ended up guaranteeing exactly what its Court did not intend - a woman being able to terminate a pregnancy at any time, in any way, and for any reason.
“We the People” can, though, learn from this failure and work toward a resolution. And I think activists on both sides will find themselves surprised by how strong the public consensus will be around the following:
1. The unborn child is a human being at the point of conception. It is important to note that some lines of Christian thought have made a distinction between when life begins (at the point of conception) and when culpability for the loss of that life begins (once the baby can move on its own). It will be very important to lay a foundation of moral common sense - the baby in the womb is at all times a fellow human being.
2. The critical threshold is when the baby moves of its own will. The Roe Court considered this religious tradition concerning movement (“quickening”) in its ruling. We might follow this by asserting that a woman’s right to bodily autonomy after conception but prior to the fetus’ capacity for independent movement is “fundamental to ordered liberty.” (I'll call this the “kick test” - Every woman who has carried a child can speak to the emotional moment of feeling that first movement.)
3. After first movement, the states may act to protect the life of the unborn child, but may not infringe upon decisions medically required to protect the life of the mother or her subsequent reproductive health. Beyond it’s poor reasoning as to “fundamental rights” the Roe Court’s overly broad “health of the woman” exception all but guaranteed we would end up where we are today. Limiting this exception to procedures required to preserve the life of the woman, or to ensure that an abnormal pregnancy not render the woman unable to have future children, may be an approach that meets with the robust consensus needed in this moment.
Our Constitution protects us from intrusive legislation
It is important not to “legislate” in the Constitution. (We tried that with Prohibition - it did not work out very well.) After first movement, one state might leave the necessarily subjective judgments to a single doctor. Others might require two other doctors agree that the pregnancy threatens either the life or reproductive health of the woman.
But we must recover a “landmark” in the landscape of freedom for women in America. It is where the original Roe decision and Dobbs are in tune with each other that we can place this landmark and return to the hard work of forming a more perfect union.
Read David Dayen’s Chain of Title for this sordid story and how three ordinary Americans successfully exposed it.
Pew Research shows that 57% of Americans disapprove of the Court’s decision. Yet Gallup shows that only 35% of Americans think abortion should be legal under any circumstances. Fascinatingly, when one scrolls down on the information at the linked page, an identical percentage (only 35%) thought that Roe v Wade should be overturned.