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Blog post: “Abortion is a constitutional right.” Is it?

By Monica Chen

One of the phrases I keep hearing in the turbulence after the SCOTUS leak on Roe v. Wade is that abortion is a constitutional right, which — that does not sound right, does it?

This blog post is my first look at this assertion by politicians and activists on the abortion issue. Is abortion a constitutional right?

If you look at the writings and talks by the late Supreme Court Justice Ruth Bader Ginsburg — the answer seems to be, “Not really.” Or she’d rebuke you for asking the wrong question to begin with.

Roe was settled on the right to privacy. But for Ginsburg, reproductive choice, not abortion, was a constitutional right for women and came down to equal protection under the law, under the due process clause of the Fifth and Fourteenth Amendments.

Ginsburg was critical of Roe, the 1973 landmark decision. She thought it was shockingly sweeping, halted progress that was already underway in the states, proved to be divisive over time, and Ginsburg seemed to have always supported the abortion debate staying in state legislatures — where women can make their needs heard and be part of the political process. 

Unfortunately and alarmingly, what’s happening right now is that many politicians and activists on the Left are equating abortion with reproductive choice. The question is — Why?

Here is Democratic candidate for the Senate, Cheri Beasley, on MSNBC the day after the SCOTUS leak doing just that. The longer version of that interview is here. Other politicians and organizations have echoed those comments for some time.

“A woman’s right to make choices about her reproductive health is a constitutional right grounded in the Fourteenth Amendment and other amendments of the Constitution. To make sure that she has the opportunity and the choice to make decisions about her family and her body without government interference,” Beasley said.

And she added: “We know that here in North Carolina, the majority of people in this state and this country support the right of a woman to have an abortion. It is a constitutionally protected right.”

Why are politicians and organizations frantically rushing to news networks to talk about abortion and reproductive freedom as if they are the same thing? Why push for national codifying of a Supreme Court decision instead of letting the debate play out in the political process — Are they worried there is actually no political will for keeping Roe? And why have they seem to have completely forgotten that “a woman’s right to choose” — doesn’t necessarily mean she’ll choose abortion?

Struck v. Secretary of Defense

For Ginsburg, thinking about the abortion debate involved considering the flip side of the Roe case and making the connection between the two. She was aware of the dangers of a government that imposes unwanted pregnancies upon women — “Jane Roe” wanting to terminate a pregnancy but could not at the time in Texas — as well as a government that coerces women into getting abortions. The flip side of the Roe debate is that reproductive choice also involves women choosing to keep their babies.

In fact, the case that Ginsburg had hoped would firmly establish reproductive freedom for women in America was not Roe, but Struck v. Secretary of Defense, which involved a U.S. Air Force Captain who wanted to go through with her pregnancy. Capt. Susan Struck was stationed in Vietnam when she became pregnant. Knowing that the military’s rule was that she had to get an abortion or be discharged, Struck filed suit to be allowed to go through with her pregnancy and keep her position.

Ginsburg wrote a brief to the Supreme Court for the case. But before the Court heard it, the Air Force changed the rules to allow Struck to stay in the service. So Struck never became the landmark decision that Ginsburg hoped it would be.

During her confirmation hearing in 1993, this is what Ginsburg said of the Struck case: “… This regulation — if you’re pregnant, you’re out unless you have an abortion — violated the equal protection principle because no man was ordered out of the service because he had been the partner in the conception.”

The argument for the Struck case crafted by Ginsburg and other lawyers had three pillars: The equal protection principle, her right to decide for herself whether she was going to have the child, and her religious freedom. Struck was Roman Catholic.

The Struck brief, as quoted by Duke University Law Professor Neil Siegel in an article in 2010, pointed out that rules that supposedly protect women by not allowing them to work during pregnancy, “have in practice deprived working women of the protection they most need: protection of their right to work to support themselves and, in many cases, their families as well.”

So there are many constitutional rights that involve a woman and her choices with regard to her pregnancy. The right to reproductive choice. The right to religious liberty. The right to work and support ourselves and our families.

“Abortion is a constitutional right”? Maybe one of the reasons why that phrase does not sound right is because it obscures many other rights that women have under the Constitution.

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