On Wednesday, the Supreme Court heard arguments over a Mississippi law banning abortions after the 15th week of pregnancy. The law roundly defies the court’s decisions affirming a right to abortion, but the state portrays the ban as the mildest of correctives.
All Mississippi wants the justices to do, insisted state solicitor general Scott Stewart, is defer to “the people.” The law, he said, came about because “many, many people vocally really just wanted to have the matter returned to them so that they could decide it — decide it locally, deal with it the way they thought best and at least have a fighting chance to have their view prevail.”
Justice Brett Kavanaugh seemed to find the argument persuasive. It’s his understanding, he said, that Mississippi believes “this Court should be scrupulously neutral on the question of abortion, neither pro-choice nor pro-life.”
Letting the people decide, and aligning the court to neither promote nor prevent abortion, sounds sensible — even libertarian. What neither Stewart nor Kavanaugh acknowledged, though, is that, in a fundamental sense, these conditions have already been met.
Under the court’s major abortion decisions, the people, as individuals, already have the full authority to make up their minds on the issue. Those who believe that every pregnancy should be carried to term are free to forgo abortions. Those who disagree are free to procure abortions. No woman is forced to abort her fetus, and no woman is forced to undergo childbirth.
By the same token, the Supreme Court has adopted a position of neutrality. Just as the Constitution does not let government forbid or require anyone to worship, the Constitution does not let the government forbid or require anyone to bear a child. Each pregnant woman is free to decide for herself.
But when Stewart and Kavanaugh use these terms, they have in mind a different meaning. If Roe and Casey were overturned, the people would be empowered not as individuals but as a collective. The court would be “neutral” only on the matter of whether states allow abortion or ban it.
Apply these meanings to a different constitutional right and the defects in their logic become clear. Champions of gun rights have always argued that “the right of the people to keep and bear arms” is an individual liberty — as the court agreed in 2008.
They believe the court must keep “the people” of any state from using the power of government to abridge this right. Americans who believe in free speech and religious liberty feel the same way about First Amendment guarantees.
Stewart insisted that abortion rights are different because the framers didn’t explicitly protect them. The Roe and Casey decisions, he argued, “have no basis in the Constitution. They have no home in our history or traditions.”
In fact, they have a spacious place in our history and traditions. In his 2017 book “Sex and the Constitution,” University of Chicago law professor Geoffrey Stone notes that abortion was legal and widely performed in the United States at the time the Constitution was ratified — and wasn’t outlawed for more than a century afterward.
It’s true that the Constitution doesn’t mention the right to abortion. But the Constitution protects many freedoms it doesn’t mention — the freedom to marry, the freedom to refuse medical treatment, the freedom to have children and govern their upbringing and more.
The Ninth Amendment stipulates that not all protected liberties are spelled out: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
If the Constitution has nothing to say about abortion, does that mean a state could require some women to have abortions — say, to prevent the birth of children with serious congenital defects?
Of course not. Requiring abortion would be a gross violation of physical autonomy, which enjoys broad constitutional protection. But banning abortion has the same effect. And the Supreme Court appears poised to let it happen.
Pro-life advocates say abortion ends a human life, as if that settles everything. But the issue is not whether a fetus is alive or human. It’s whether and when its preservation is sufficiently important to override a woman’s fundamental right to control her own body.
Americans have long disagreed on that question. Our disagreement is a powerful argument for leaving the choice to each pregnant woman.
Right now, we let the people decide, one by one, under the protection of a neutral government. But probably not for long.