Roe v. Wade at 40: Acts, Omissions and Abortion

By Mike Dorf

On Justia's Verdict, my column today--part 1 of a 2-part series--marks the 40th anniversary of Roe v. Wade.  Part 2 will appear next Wednesday, Jan. 23, one day after the actual 40th anniversary. In today's column, I explain why three common criticisms of Roe are either mistaken or, if credited, are not really arguments against Roe but much broader arguments against unenumerated rights and perhaps against all of judicial review. Here I want to expand a bit on one point I make in passing in the column.

In discussing the contention that the courts have no business recognizing unenumerated rights, I note (as many others have noted before) that if this contention were true, then there would be no constitutional right against forced abortions. How might a critic of Roe who didn't want to get rid of all unenumerated rights reframe his or her argument more narrowly?

Consider the 1989 oral argument in Webster v. Reproductive Health Services. The United States appeared as an amicus urging the Court to overturn Roe but, in the words of Charles Fried, who argued for the Bush I Administration, doing so would not "unravel the fabric of unenumerated and privacy rights." The government's position was that there are unenumerated constitutional rights but that abortion is not one of them. So, how did Fried deal with the question of forced abortion?  Here's the relevant exchange with Justice O'Connor:
Justice O'Connor: Do you think that the state has the right to, if in a future century we had a serious overpopulation problem, has a right to require women to have abortions after so many children? 
Mr. Fried: I surely do not. That would be quite a different matter. 
Justice O'Connor: What do you rest that on? 
Mr. Fried: Because unlike abortion, which involves the purposeful termination of future life, that would involve not preventing an operation but violently taking hands on, laying hands on a woman and submitting her to an operation and a whole constellation -- 
Justice O'Connor And you would rest that on substantive due process protection?  
Mr. Fried: Absolutely.
This little exchange confirms the core point I make in my Verdict column: that many of the arguments directed at Roe -- e.g., "the Constitution doesn't mention abortion" -- cannot be taken seriously because they would do away with all sorts of other unenumerated rights and even many conservatives don't want that.

So, having endorsed substantive due process, how does Fried distinguish abortion prohibitions from forced abortions? He appears to make two arguments. First, by invoking "the purposeful termination of future life" Fried pretty clearly implies that he thinks the government has a powerful interest in forbidding abortion--protection of fetal life--and that this interest is absent in the example of forced abortion to address overpopulation.  Fair enough.  The question of whether the state's interest in fetal life is sufficient to override a woman's freedom to control her body is, obviously, what makes abortion a difficult issue. I'm not going to enter that debate here.

But Fried makes a second point that appears to be independent of the state's interest in fetal life, one that seems to say not only that the state has a powerful enough interest to override the interest of a woman in having an abortion, but that that interest is not of constitutional dimension in the first place.  He draws an act/omission distinction. By prohibiting abortion, Fried implies, the state is not affirmatively doing anything to a woman who wants an abortion, and therefore an abortion prohibition is less of a violation of her liberty than requiring her to get an abortion would be.

This line of reasoning should sound familiar because it rests on the same logic as the view that underwrote much of the opposition to the insurance mandate in the Affordable Care Act litigation and larger debate. The idea is that government may act legitimately by stopping people from doing things (like buying broccoli or having abortions) but not by making them do things (like eating broccoli or having abortions). Now, in the ACA context, I thought the prohibition/mandate distinction was misguided for two core reasons: 1) It's about liberty rather than federalism; and 2) the ACA was at most analogous to a mandate to buy broccoli, not to eat it.

But those disanalogies aren't present with respect to the abortion issue.  Here the question is about liberty and the intrusion really is bodily, not merely economic.

So was Fried right? Putting aside the nature of the state interest in the two cases, so far as the infringement on liberty, is there a qualitative difference between an abortion prohibition and an abortion mandate?  I think the answer is pretty clearly not. Let's look at the matter from both sides.

To characterize an abortion prohibition as not entailing an affirmative obligation is obtuse at best. Even assuming that a woman who is legally forbidden from obtaining an abortion puts her baby up for adoption immediately upon birth, and thus avoids the affirmative obligation to care for a child until he or she becomes an adult, abortion prohibitions enlist women's bodies as involuntary incubators.  As Eileen McDonagh argued in her 1996 book, if an already-born human did to a pregnant woman what a fetus does in the course of a normal pregnancy--even if the already-born human did so, as the fetus does, without intention--she would have a right to kill that "attacker" in self-defense. My point here is not that you need to find McDonagh's argument for the abortion right persuasive; just that it's borderline preposterous to call an abortion prohibition merely a negative prohibition rather than an affirmative intrusion.

Meanwhile, from the other side, we can imagine that forced abortions might be carried out without the state "laying hands on a woman," in Fried's phrase. Instead, a forced-abortion policy could be implemented through criminal punishments for failure to have an abortion when the birth of a child would violate the (hypothetical) population control measure. In short, both abortion prohibitions and forced abortions would amount to very serious affirmative intrusions on liberty rather than "mere" prohibitions, even though both could be accomplished as a formal matter without (or with) the state "laying hands on a" pregnant woman.

Having said all of the above, I want to be clear that I do think there are many contexts in which the act/omission distinction is extremely important.  As a matter of everyday morality, the act/omission distinction  enables us to live what we regard as at least minimally virtuous lives without giving away everything we have beyond what's needed to subsist, to those less fortunate than ourselves.  I.e., we understand ourselves as obligated not to harm others but with a few special exceptions, we do not regard ourselves as under a duty to aid others. And I don't think this is merely a rationalization. We have strong moral intuitions that acting to cause harm is much worse than failing to prevent or remedy harm caused by others or by natural forces.

So my case against the act/omission distinction in the abortion context is a limited one. The distinction is important but it's also important to sort out where it should apply and where it should not.