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The Women's Freedom Network Newsletter
November/December, 2001, Vol. 8, Number 6. How to make the Abortion Issue Go Away
by Andrew Hyman
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I t's no secret that the vast majority of women and men wish the abortion issue would go away, but we haven't yet been able to agree how to make that happen. Indeed, this issue will never go away until moderate people insist upon a reasonable solution -- a "principled compromise" if you will. It's just not good enough for our politicians to take the attitude that the courts should be left to cope with the incendiary consequences of their decision in Roe v. Wade. The Supreme Court ought not to be political football, any more than a woman is or a fetus should be.
I hope that maybe some politicians will be interested in a draft constitutional amendment that I've put together, unlike any amendment that has ever been proposed before. Now would be a perfect time for a principled constitutional compromise on the abortion issue, seeing as how President Bush intends to appoint judges inclined to return the entire abortion issue to the state legislatures. Although it would certainly be consistent with our traditions of self-government to return policymaking authority to the state legislatures, and while it is certainly true that the Roe v. Wade decision included some subjective policymaking, nevertheless there would be great wisdom in setting some reasonable constitutional limitations on the states in order to prevent "fringe" states from going too far with their abortion laws.
If the whole abortion issue is simply dumped in the laps of the state legislatures, then inevitably future presidents will again appoint judges willing to reopen this issue, and our country will be dragged through this whole mess again. One could argue that Congress already has power to set reasonable limitations on state abortion laws, and indeed Congress passed the "FACE Act" to ensure access to clinics. But, extensive federal legislation in this area would be inappropriate. The FACE Act acknowledges that Congress will not "interfere with the enforcement of State or local laws regulating the performance of abortions." For Congress to enact abortion regulations would interfere with the powers of the states, would not resolve anything in a permanent way, and would be inconsistent with Supreme Court decisions. A constitutional amendment would be the best way to go.
Without further ado, here is a draft constitutional amendment, which is slightly shorter than the longest existing amendment (the 14th Amendment), and which is also available at www.fixtheconstitution.org:
Section 1. No law shall treat people of one gender as unequal to the people of the other gender.
Section 2. Each of the rights of the people enumerated by this and the other articles of amendment shall restrain the power of both the federal and state governments and shall be defendable by timely recourse to the judicial power of the United States. The obsolete amount of dollars in the seventh amendment is hereby repealed, and may be determined by Congress, and shall by default be two thousand dollars. Congress shall have power to legislatively make each determination specified in this and the next section provided two thirds of both Houses concur, and shall have power to void each of those determinations by ordinary legislation.
Section 3. No law shall prevent any person from obtaining a discontinuance of her pregnancy that is safe for her, or cause her substantial delay. However, Congress shall make no law, pursuant to power delegated by the other articles of the Constitution, inhibiting a state from imposing any subsequent fine or punishment related to an intentional discontinuance of pregnancy, subject to the eighth amendment. No law shall fine or punish a person for discontinuing her pregnancy if at that time she clearly was, or realistically she could have reasonably thought she was, having a pregnancy through no fault of her own, or having a serious physical health defect with her pregnancy through no fault of her own, or having an abortion before a point of development determinable by Congress. The point of development shall by default be the beginning of the fetal stage, which naturally occurs sixty days after conception.
Section 4. Nothing in this article shall be construed to disparage life or endorse its termination, or to prevent laws penalizing more than one parent of a fetus, or to preclude any law consistent with this article that regulates the manner in which pregnancies are discontinued or that prevents alternative methods of discontinuation, or to allow medical personnel to be held legally responsible for a woman's informed choice to discontinue her pregnancy, or to alter the fact that a person is at least partly at fault for her pregnancy if she consented to it or consensually risked having it or intentionally prolonged it. No law regarding fundamental individual privacy shall be valid without the consent of Congress, if proved to have no conceivable rational basis.
Section 5. No ratification of any amendment after the twenty-seventh shall be valid if it occurs later than seven years after being proposed to the states.
The main points of this draft amendment are easy to describe here, and I hope to soon publish a much more detailed analysis. Obviously, Section I is similar to an "Equal Rights Amendment," although the present language is more flexible than past proposals. If we are going to successfully address the abortion issue, it would be very helpful to immediately dispel any notion that women are inferior to men (or vice versa); the vast majority of American support equality, and most people who are opposed to abortion want to save innocent lives rather than subjugate women. The language of Section I also has a big advantage due to its flexibility. For example, suppose several states want to require that all male citizens submit DNA samples on a confidential basis, in order to help solve crimes such as the more than half million rapes that occur each year in the United States. Should a man be able to argue that he should have just as much right as a woman to withhold a DNA sample? In order to preclude this type of argument, Section l is careful not to imply that women's rights must be identical to men's. And yet, Section I would firmly establish the legal equality of men and women, and would negate statutes to the contrary.
Section 2 is preliminary to the real heart of this suggested amendment. The abortion issue is primarily dealt with by Section 3 and 4 of the suggested amendment, whereas Section 2 is needed to set the state. Section 2 begins by saying that all of the rights specified by this amendment, including the right to equality described in Section I and the limited abortion rights of Sections 3 and 4, would restrain both the federal and state governments. The Supreme Court has already decided, in the decades following World War II, that most rights specified in the Constitution restrain not just the federal government but the states as well, and Section 2 would make sure that this applies to women's rights too. Of course, it doesn't much help to have rights spelled out in the Constitution if you can't defend them in court, and so Section 2 also provides that all of the rights in the Constitution would be defendable by recourse to the federal courts. This would give the federal courts discretion to hear your case, even if Congress wants states to have access to the federal courts. This recourse provision would not change the meaning or scope of the Bill of Rights.
As mentioned, the Supreme Court has already decided that most rights specified in the Constitution restrain both the federal and state governments. The ironic thing is that the Justices have had an awfully difficult time agreeing about which clause of the Constitution accomplished that purpose. For example, Justice Hugo Black argued that the "Privileges or Immunities Clause" of the l4th Amendment did the job, whereas Justice Felix Frankfurter argued that the "Due Process Clause" of the 14th Amendment did the job, and many Supreme Court cases in the late 19th and early 20th centuries held that neither clause did the job. The present Section 2 would clear up this controversy, even though every single word in Section 2 would still be useful if there were no such controversy (this is a subtle point that I won't dwell on here). Section 2 would largely remove the compelling need to over extend either of those two clauses in the l4th Amendment, and keep in mind that the Due Process Clause is the one relied upon (and over-stretched) by the Court in Roe v. Wade.
There are a few rights specified in the Constitution that have not yet been applied by the courts to restrain the state governments: the right to indictment by grand jury, the right to a jury in a civil case, and the right to keep and bear arms. Section 2 of the present suggested amendment would apply those three rights to the states, and it's very easy to understand why this is no big deal. Regarding grand juries, the Supreme Court has already decided that defendants can waive that right, and so the grand jury requirement would not disrupt the practices of states that offer defendants the preferred option of prosecution by information. Regarding the right to bear arms, 43 states already protect that right in their state constitutions, and the other 7 states do so by statute. Likewise, 48 state constitutions already protect the right to a civil jury, and the other 2 states do so by statute. The present Section 2 has a few other parts that would be important, but not very interesting or controversial.
Sections 3 and 4 are pretty much self-explanatory, but here are a few comments anyway. The main idea is that abortion should be completely legal up until the point at which an embryo becomes a fetus, which is sixty (60) days after conception (although that point could be changed by Congressional supermajority, and restored by simply majority). All the major organ systems are in place by about 8-10 weeks after conception, and the fetus looks human with tiny arms, legs, fingers, and toes. Integrated brain functioning begins to emerge about 70 days after conception, although brain waves have been detected much earlier. After the 60 days, it is suggested that a woman should be able to safely discontinue her pregnancy, but may be subjected to any subsequent state penalties, unless the pregnancy was not her fault (e.g. due to rape), or the pregnancy was physically defective. Those state penalties would be limited by the 8th Amendment, which prohibits cruel and unusual punishment. States would not have to impose subsequent penalties (e.g. when there are mental health problems), and states would be able to prevent abortions of viable fetuses that could instead be delivered prematurely. Section 4 would also allow courts to overturn state laws that interfere with people's privacy if those laws are blatantly irrational, but Congress could effectively immunize any such law. Section 5 imposes a 7-year deadline for ratification.
Obviously, there are many complicated issues surrounding this suggested amendment, and it is not easy to cover all of them in a newsletter summary such as this. But, a few more comments may help shed some light.
Americans overwhelmingly believe that abortion in the second trimester should be illegal without some justification such as health, rape, or the like, and women have always felt more strongly about this than men. A June 18, 2000 Los Angeles Times poll says that 72% of women believe second trimester abortions should be illegal, and Gallup Polls have consistently shown similar results. Many great feminists were instrumental in creating strict criminal penalties for abortion. For example, Susan B. Anthony wrote this:
"Guilty? Yes. No matter what the motive, love of ease, or a desire to save from suffering the unborn innocent, the woman is awfully guilty who commits the deed. It will burden her conscience in life, it will burden her soul in death; but oh, thrice guilty is he who drove her to the desperation, which impelled her to the crime!"
Likewise, Theodore Roosevelt wrote in his autobiography that
"a physician of wealth and high standing had seduced a girl and then induced her to commit abortion - I rather lost my temper, and wrote to the individuals who had asked for the pardon, saying that I extremely regretted that it was not in my power to increase the sentence."
From the dawn of western civilization until our lifetimes, the legal right to life was based not upon whether a fetus is strong enough to survive outside the womb, but rather upon whether there is sensation and life. For example, Aristotle wrote, "the line between lawful and unlawful abortion will be marked by the fact of having sensation and being alive."
Nevertheless, the Supreme Court recently reiterated that "before viability ... the woman has a right to choose to terminate her pregnancy."
There are about 1.5 million abortions annually in the United States, and about 45% of them occur after eight weeks' gestation, and about 12% occur in the second trimester; the most common reason for late abortions, cited by over 70% of women having them, is not rape or incest or any danger to the health of the fetus or the mother, but rather is simply not recognizing the pregnancy or its duration earlier (these statistics come from the Alan Guttmacher Institute). Even if late abortion is used simply as a birth control method, the Supreme Court says that it would be a violation of "due process" for a state to deter it. Therefore, human fetuses are being ripped apart without any penalty or deterrent, regardless of whether the fetus feels and thinks and hopes and struggles like any other human being. The present suggested amendment is intended to improve this unfortunate situation.
Over ten thousand constitutional amendments have been introduced in Congress, only 34 have emerged from Congress, and only 27 have received final approval from the states. But none of those amendments was anything like the one suggested here.
Not since 1870 have we entered such a long draught of congressional proposals that have succeeded in amending the Constitution. But maybe now this country is sufficiently fed up with the abortion controversy to insist upon a principled constitutional compromise. I hope so.