About That Constitution

I have to say that I think one of the most surprising bits of conventional wisdom to emerge over the years has been the squishy middle's sense that abortion should be generally legal, but that legal decisions holding that there is a constitutional right to securing this outcome are constitutionally dodgy. I'm no constitutional lawyer, but this strikes me as a pretty clear-cut issue.

The fetus either is or isn't a "legal person" under the 14th amendment. If it is, then clearly abortion bans are not only constitutionally permissable, but constitutionally mandatory. If it isn't, however, then what's the basis for the state regulating conduct that takes place entirely inside the body of a rights-bearing citizen? It would need to be a mother-regarding health-and-safety regulation of some sort which, in the nature of things, is going to leave abortions generally legal as long as they're being performed in a way that's unlikely to seriously injure the mother.

A lot of people want to say that Roe and/or Casey are legally dodgy without leaping all the way to the other conclusion that there should be a constitutional prohibition on abortion. The primary motive for this, I think, is that people find it odd that such a controversial issue as abortion rights should be decided primarily by the courts. They also feel, intuitively, that it's weird to leap so suddenly from one stance to another. I tend to agree that this is odd. The oddness, however, is right at the heart of the institution of judicial review as practiced in the United States. I'm of the opinion that this institution isn't a great idea and that many other countries have found more satisfactory institutional mechanisms for the relationship between courts and legislatures. There's no question, however, that strong judicial review is the system we actually have and reproductive freedom advocates have every reason to press our case vigorously through America's actual institutions rather than act in some make-believe universe where the United States has a generally majoritarian set of political institutions.