Health, Son

Ross Douthat wants to disputate about whether the unconstitutionality of abortion bans really does follow straightforwardly from the premise that a fetus lacks the legal status of a person:

But there are all sorts of laws that regulate "conduct that takes place inside the body of a right-bearing citizen" - particularly when another party (like, say, an abortionist) performs said conduct. For instance, we have laws against selling your organs, laws against prostitution, laws against assisted suicide, laws that prohibit the sale of drugs and restrict the sale of alcohol, and so on and so forth. Some of these may be bad laws, but it seems like quite a stretch to say that they're all unconstitutional.

To be sure. As I wrote in my original post, constitutional abortion regulations "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." That's the difference. The common thread tying together the sort of regulations Ross is citing here is a public health rationale. I don't think anyone would dispute the constitutional right of congress to prohibit or curtail the use of a genuinely dangerous abortion procedure -- regulations aimed at protecting the health of pregnant women. Abortion regulations that lack health exemptions, however, can hardly be said to be public health measures. Alternatively, one could try to see abortion bans as a kind of commercial regulation -- like a rule that you can't have a liquor store next to a school, or zoning in general. But I find it hard to see how this sort of rationale could support banning the provision of a class of medical services throughout an entire state or country.

What's more, anything along these lines would be offered in bad faith. Abortion opponents don't oppose abortion rights because they think such rights are bad for the health of pregnant women. Nor do they oppose legal abortion because they think it's bad land use policy. They oppose it because they think fetuses have moral rights that ought to be instantiated as legal rights. This, however, leads to the conclusion that courts should require abortion bans, just as the SCOTUS wouldn't let a state pass a law saying "murder is illegal unless the person you kill is over 73." Either way, it'll be decided by judges. That, for better and for worse, is the nature of the American constitutional system. A question of what does and does not count as a legal person is a question for the courts and issues of enormous consequence hinge on those decisions.