Why the Right to Elective Abortion Fails Casey's Own Interest-Balancing Methodology -- And Why It Matters

Abstract

In Planned Parenthood v. Casey, the Supreme Court reaffirmed the right to elective abortion before viability, but abandoned Roe v. Wade’s characterization of it as a fundamental right that can be overcome only by a compelling state interest. Instead, Casey treats the right to elective abortion as grounded in an interest-balancing judgment that the woman’s liberty interest in terminating her pregnancy outweighs the state’s interest in protecting pre-viable fetal life. Remarkably, however, the Casey Court did not defend that interest-balancing judgment on the merits: indeed, three of the five Justices in the majority expressly declined to explain how they would have decided the interest-balancing question as an original matter. As a result, the majority was forced to rely on stare decisis and related considerations of "institutional integrity." In this Article, I engage in the interest-balancing analysis Casey omitted, and argue that the right to elective abortion is unsound in Casey’s own terms. I assume the validity of Casey’s "reasoned judgment" approach to identifying unenumerated rights, including the interest-balancing methodology Casey used to reshape the right to elective abortion. I also assume that Casey (like Roe before it) is correct in characterizing the pre-viable fetus as "potential human life" rather than as an actual, normatively human being. These are obviously unfavorable premises on which to argue against a right to elective abortion. But that is precisely the point. My thesis is that even when an interest-balancing analysis is conducted on terms generally favorable to recognizing a constitutional right to elective abortion, the state’s interest in protecting the life of the pre-viable fetus prevails.I make that case through a close reading of Casey, careful descriptions and comparisons of the competing state and individual interests, and a concise analysis of the treatment of abortion – and of fetal life generally – in the Anglo-American legal tradition. As to precedent, I argue that a majority of the Justices in Casey believed that the state’s interest in protecting fetal life outweighs the woman’s interest in an elective abortion, and that their judgments should carry appreciable weight because they dictated Casey’s reliance on stare decisis. As to the competing interests, I acknowledge that the woman’s interest is entitled to great weight, but argue that the fetus’s inherent, self-directing "potential" to develop into a normatively human being should lead us to assign even greater weight to protecting its life – and its future. As for history, building on the scholarship of Joseph Dellapenna and others, I argue that the Anglo-American legal tradition has always protected the lives of fetuses once they could be known to be alive – initially at quickening, and throughout pregnancy once the basic facts of embryology were discovered in the 19th century. Precedent, reasoned evaluation of the competing interests, and tradition all point toward the conclusion that the state’s interest in protecting pre-viable fetal life outweighs the woman’s interests in terminating her pregnancy and ending that life. Viewed as a contribution to reproductive-rights scholarship, my analysis develops a line of argument that differs markedly from most scholarship challenging the right to elective abortion, which either denies the legitimacy of unenumerated rights not anchored in tradition, or disputes the Court’s assumption that the pre-viable fetus cannot be shown to be a normatively human being. Viewed as an argument the Supreme Court should consider, my analysis suggests that the Justices who adhere to the right to elective abortion as a matter of stare decisis should join forces, as they did in Gonzales v. Carhart, with the Justices who would overturn the right to elective abortion, and should expressly hold that the state’s interest in protecting the pre-viable fetus outweighs the woman’s interest in an elective abortion, even assuming stare decisis requires preserving the right to elective abortion. Doing so would prevent the erroneous constitutional judgment on which the right to elective abortion now rests from distorting the Court’s consideration of related issues involving state regulation that seeks to protect post-conception fetal life (such as laws restricting the destruction of cryopreserved embryos). It would also provide a more secure and convincing foundation for interpreting Casey’s undue-burden standard, as Gonzales v. Carhart sought to do, to give very substantial (though not unlimited) leeway to state regulation protective of pre-viable fetal life.