I've been reading about the issue in my constitutional law class, and I thought I'd try to sort out some of my thoughts on this difficult subject. I'm starting to get all confused, and I'm not sure I like that.
To start with, I'd like to point out that it seems that, like much of public discourse, the great debate about Roe v. Wade rages on without anyone being particularly informed about the case, or the caselaw, or the Constitution. One recent telling example is Sarah Palin's acknowledgement in the Katie Couric interview that she thought there was a right to privacy in the Constitution, which showed that she clearly had no idea how Roe v. Wade had been decided...
Historical Background: Unenumerated Rights & the Lochner Era
In Lochner v. New York (1905), against a historical backdrop of industrialization and enamorment with laissez-faire, the Supreme Court struck down a law limiting the number of hours that bakers could work per week, on the basis that the law was an unreasonable and arbitrary governmental interference with the individual's "right to contract."
Nowhere in the Constitution is there an explicit "right to contract." The Lochner Court pretty much made up this unenumerated right by interpreting the "liberty" in the Due Process Clause to include the right to contract. (Note: Due Process Clause: "No person shall...be deprived of life, liberty, or property, without due process of law.")
The Court of that era struck down a slew of legislation aimed at economic regulation (e.g. minimum wage laws, maximum hour laws, child labor laws) on the basis of unenumerated rights. The approach was rather libertarian in that the Court basically said, you should be able to work for $0.50/hour if you're willing to!
... And then the Great Depression rolled around, and the Court took a reverse course, abandoning the Lochner doctrine of unenumerated rights. The Court pretty much stopped striking down economic regulations. Today, Lochner and its progeny are reviled by liberals and conservatives alike, though for different reasons (anti-worker philosophy and judicial activism, respectively).
Modern Unenumerated Rights
Roe v. Wade finds that, although the Constitution does not mention any right to privacy, the Court has recognized [in the past] that such a right exists under the Constitution. The Court relies on caselaw from, among others, a string of contraception cases to find that certain of the Constitution's guarantees have a 'penumbra' that creates a 'zone of privacy.'
The Constitutional basis for this 'penumbra' in Roe is the concept of personal "liberty" in the Due Process Clause... in other words... the same place the Lochner Court had located its unenumerated right to contract. (Note: This is not the case with some of the contraception cases, which locate the penumbra under, among others, the 1st, 4th, 5th, and 9th Amendments.)
The Problem
I find the Roe decision hard to swallow, because it seems to me so ... weak. Conservatives love this, of course, because they can revile both Lochner and Roe on the same grounds - that zealous judges imposed their own personal viewpoints on society by making up rights that don't exist in the Constitution. Libertarians are all right in this, too, because they like both Lochner and Roe. But for me ... I think Lochner was wrongly decided, but I want to save Roe.
The whether-the-fetus-is-a-person / LIFE issue here is not my primary concern, as that seems to be a moral question, not a legal one. (Roe's cop-out answer, for those curious, is that (1) the word "person" as used in the Constitution only means postnatal people; and (2) the judiciary is not in a position to resolve what doctors, philosophers, and theologians have been unable to resolve (whether life begins at conception)). The moral question, of course, is what most of public discourse focuses on.
But as a pro-choice wanna-be-lawyer, my primary concern is the law. I'm having a bit of a hard time trying to articulate why - what legal basis there is for saying - the government cannot proscribe abortions. (Note: A law without an exception for the mother's health might be unconstitutional for not being narrowly tailored. But that's a different issue than the one here.)
It seems to me that there has to be a libertarian-style privacy line drawn somewhere - one that even conservatives would find intuitive. For instance, I should think that everyone would find something wrong with a law that mandated that husbands and wives were only allowed to have sex on every third Monday. Or a law that required everyone to wear only black clothes. Or a law that required all children to go to public school. Or a law that allowed each family only one child. Or a law that mandated sterilization after age 33. My intuition is that the Constitution must protect against such intrusion... somewhere.
But where...?
Solutions??
I don't like the Court's approach of drawing the line with the due process "liberty" clause.
Perhaps the line was meant to be drawn, at the federal level at least, with Article I's enumerated powers of Congress - a restriction that was essentially blown wide open by the Court's dramatic expansion of the Commerce Clause. But even with Article I restrictions, state governments would still have had the power to intrude on the personal lives of its citizens.
Perhaps the line was meant to be drawn by the privileges and immunities clause of the 14th Amendment ("No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States..."). But that clause was gutted by the Slaughterhouse Cases...
Or the 9th Amendment? ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.") I have no idea, but it seems like we'd have a slippery slope issue if we opened the 9th Amendment to all sorts of rights....... rights to privacy, rights to contract... In other words, this would have the same problem as Lochner.
My best hope is that my con law professor comes up with some brilliant way to defend the right to choose under Equal Protection, or something like that. But I'm having a hard time conceptualizing what such a defense might look like...
... and my biggest fear is that I won't be convinced that there is a viable legal justification for the right to choose.
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