The Right to Become a Parent Is Now at Risk Too

The courts used to understand that Roe stood not so much for the choice to end a pregnancy as for the choice of whether to end one.

Illustration of two blurry figures facing in opposite directions
The Atlantic

About the author: Laurence H. Tribe is a University professor of constitutional law emeritus at Harvard Law School.

The Supreme Court may not realize it, but in overturning Roe v. Wade it would open up a horrifying and perhaps counterintuitive possibility that should repulse all admirers of liberty: the legality of forced abortion or sterilization. Just as a fetus is inextricably fused with the body of the person gestating it, if the Court erases Roe and thus obliterates the right not to beget and bear a child, it will inevitably erase its reflection: the right to bring a child into the world. If Roe was wrong, then decisions upholding mandatory sterilization and abortion would be right.

The practical and not merely theoretical nature of that symmetry became clear during the nearly two-decade interval between Roe’s initial recognition of the constitutional right to an abortion in 1973 and Planned Parenthood v. Casey’s reaffirmation of that right in 1992. Lower courts, including the Courts of Appeals for the Fourth and Eleventh Circuits, had during that period been confronted with repeated efforts by state officials, sometimes doing the bidding of teenage girls’ parents, to coerce their daughters into undergoing surgical abortions or sterilizations. The reasons offered ranged from feared birth defects to beliefs that their girls were not ready to be good mothers to disapproval of the fathers-to-be, although it’s hard not to suspect that domestic abuse and incest were sometimes lurking beneath the surface.

Consider the case of Virginia Avery, a 15-year-old Black girl who became pregnant and sought prenatal treatment at a state-controlled medical facility in Burke County, North Carolina, in the years after Roe. State medical officials told Avery that she had a sickle-cell blood condition that exclusively affected the Black population, that continuing her pregnancy would immediately endanger her life or shorten it considerably, and that her condition would prevent her from taking birth control pills. The medical diagnosis turned out to be a lie, but, believing the doctors and succumbing to their relentless pressure, Virginia underwent an unwanted abortion and agreed to be sterilized. In 1981, the Court of Appeals for the Fourth Circuit ruled in Avery’s favor in a federal civil-rights suit against the state medical officers. The story of a pregnant Black high-school girl pressured for weeks by Alabama public-school counselors to undergo an abortion against her wishes—as well as the wishes of her family and sexual partner—is no less shocking, and ended with an Eleventh Circuit ruling in the girl’s favor in 1989.

The decision those courts invoked to protect the bodily integrity and personal dignity of the young women involved? None other than Roe v. Wade. The courts understood—and the Eleventh Circuit explained at length—that Roe stood not so much for a right to end a pregnancy as for the right to choose whether to end one. Indeed, when Supreme Court justices have affirmed the existence of another right nowhere named in the Constitution—a right to refuse unwanted medical interventions—they haven’t hesitated to invoke Roe v. Wade.

That’s why, when the Court in Casey was explaining its decision to protect a woman’s autonomy, it pointedly said that it wasn’t relying on the doctrine of stare decisis, or standing by decisions previously made, despite the failure of the Constitution’s text to mention the subject except at a high level of generality, using the word liberty. The Court in Casey reasoned that if a woman’s liberty to choose whether to remain pregnant could be usurped by the state on the basis of any rational justification—a notoriously easy standard to meet—then the state would need no more justification to force a woman to abort than it would need to prevent her from aborting. Coerced pregnancy and coerced abortion were, as I wrote in an article several years after the Casey decision, “mirror images of one another.” As the Court in Casey specifically put the matter, in a passage almost everyone appears to have overlooked in the 30 years since:

The soundness of this prong of the Roe analysis is apparent from a consideration of the alternative. If indeed the woman’s interest in deciding whether to bear and beget a child had not been recognized as in Roe, the State might as readily restrict a woman’s right to choose to carry a pregnancy to term as to terminate it, to further asserted state interests in population control, or in eugenics, for example. Yet Roe has been sensibly relied upon to counter any such suggestions.

At that point, the Court referenced the lower-court decisions I’ve mentioned, in which judges refused to force young women to end their pregnancies or to undergo sterilization. And it was that comparison, not precedent, on which the Court relied to insist that the core holding of Roe was right.

Justice Antonin Scalia, in his dissent in Casey, mocked that supposed symmetry as proof of the Court’s bankrupt reasoning, archly insisting that he could tell the difference, even if the Court’s majority couldn’t, between killing a fetus and preventing its death. But that mistakes a definition for an argument. Yes, an abortion causes the death of a fetus. But the question is how to decide whether that consequence of letting a woman control her own body and destiny suffices to justify an imposition that our law otherwise steadfastly resists: depriving a person of full ownership of his or her body, full control of his or her life, whether in the context of forcing someone to donate blood or a kidney or of forcing someone to continue a pregnancy.

Nor is it decisive that a ban on abortion forbids an act while a coerced abortion commands one. It was none other than Justice Scalia, two years before Casey, who wrote in a case involving mandated medical treatment about “the irrelevance of the action-inaction distinction.” “Starving oneself to death,” he wrote, “is no different from putting a gun to one’s temple.”

In a Constitution that outlaws slavery and involuntary servitude, is it really enough, as Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization insists, that “abortion destroys what … the law at issue in this case regards as the life of an ‘unborn human being’”?

If no more than that widely contested characterization is demanded, as the Alito draft implies, then we have opened the door to compulsory sterilization of people deemed likely to transmit undesirable traits, and the nightmare of forced abortion. As Justice Robert H. Jackson once remarked, “It seems trite but necessary to say that … our Constitution was designed to avoid these ends by avoiding these beginnings.”