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It’s not (just) about the right to an abortion

What was sacred about abortion in America was how the Constitution was understood to protect the private decision-making rights of women. That's gone now
Griswold v. Connecticut Case Brief Summary | Law Case Explained
Watch. (YouTube, uploaded by: Quimbee, August 22, 2015)
Griswold v. Connecticut Case Brief Summary | Law Case Explained Watch. (YouTube, uploaded by: Quimbee, August 22, 2015)

There are quite a few events or circumstances that can be understood to signal the end of US exceptionalism. And by exceptionalism, I mean “exceptional” in the positive sense (not just as an exception). The attack on the Capitol on January 6, the killing of George Floyd that led to the Black Lives Matter riots, the huge and ever-growing US national debt, the extraordinary number of lives lost to COVID-19 in the US, despite national wealth and access to vaccines, to name just a few, each potentially signals a falling empire. But for me, a US-turned-Israeli law professor, it is last Friday’s overturning of Roe v. Wade and Cassey v. Planned Parenthood that ends the way I viewed the US legal system as truly exceptional.

The ruling in Dobbs v. Jackson Women’s Health came as no surprise but still stung. The heart of the ruling is the undermining of substantive due process. Substantive due process has been used for more than 50 years to ensure that even when a specified right is not explicitly mentioned in the US Constitution, the 14th Amendment’s guarantee of “due process” creates an obligation on the states to provide not just procedural fairness, but substantive guarantees as well. The most remarkable of these substantive due process cases, to my mind, is Griswold v. Connecticut, in which the Supreme Court in 1965 struck down a ban on the use of contraceptives by married couples, due to an understood right to privacy. This privacy was understood as being part of the Constitution, despite it not being mentioned explicitly. This right to privacy was later expanded in a series of cases as being inferred from the due process clause.

This “privacy” is very special; it is exceptional. It is not the privacy we understand in the legal context in Israel, privacy from search and seizure or privacy in the form of confidentiality. It is about privacy in making personal, intimate, life-defining choices. This robust privacy was understood for almost 60 years to include the fundamental decision regarding whether to have a child. This right to privacy has also been understood to include the right to marriage, including same-sex marriage, the right to reproduce, to raise children as one sees fit, to use birth control, and, until Friday, to have an abortion. In contrast to the right to human dignity, the important foundational right on which similar civil rights are grounded in Israel, the right to privacy imparted incredible freedom and trust in the private citizen — it is not the government’s role to preserve and protect that creates rights in the citizen; it is the right of the people themselves to have privacy in their own decision-making. This freedom, this trust in the citizen, the emphasis on rights to be free of state control, permeates much of what has been remarkable about US civil rights as understood and granted by the US Supreme Court.

In my classes in Israel, in order to emphasize the meaning and importance of this privacy, and how it is different from legal privacy in Israel, I would typically contrast US abortion law to Israeli abortion law. Both of which were, until Friday, considered permissive and liberal, in that abortion is largely accessible to the vast majority of women who seek abortions in both countries.

Until last Friday, in the US, until the stage of viability – when a fetus can likely survive outside the womb of a woman – the state could limit access to abortion by placing hurdles that need to be overcome before the procedure was performed, such as waiting periods, the requirement to receive information before undergoing the abortion, etc., but the state could not ban abortions. Thus, although women may have had trouble finding an appropriate clinic and may have had to go through annoying, invasive hurdles, abortion was largely accessible with the doctor of a woman’s choosing.

In Israel, in order to get an abortion — legally — a woman must submit a request to a specified committee, indicating one of several permissible reasons to abort, including, age, suspected illegitimacy, suspected deformity in the fetus, or a claim that having the child will cause physical or emotional distress to the woman. Before a woman can be declined the permission to abort, she has the right to a hearing, which is regularly convened by the committee. In practice, despite socio-economic reasons not being one of the permissible bases of having an abortion, approximately 97 percent of requested abortions in Israel are permitted, and requests can be made even after the viability stage – although special committees are set up to review such late term abortions.

And yet, despite the fact that such a large percentage of requests are granted in Israel, and funded by the government, it is estimated that as much as 50% of abortions each year in Israel are performed illegally — without committee approval — in a manner that could subject doctors to fines or even jail time. Why?

It’s the privacy! That’s what the US had gotten right, but has since abandoned. Women do not want to appear in front of committees and be shamed for sexual acts that may include compromised circumstances, mistakes, improper behaviors, or just deep regret. For women, the choice to abort is incredibly difficult and facing a committee that has to determine whether your decision is reasonable can be humiliating. What was so sacred about the right to abort in the US is the way the federal Constitution was understood to preserve the private decision-making rights of women.

Now what are we left with in the US? Abortion bans will primarily affect poor women, underage girls, and others who struggle to get access to healthcare. Wealthier women of means and education will travel to states that allow abortions or hire doctors who are willing to break the law. This reality further reveals and entrenches schisms and gaps in US society between the haves and the have-nots, the further abandonment of the young girls at risk and other vulnerable populations. In some states abortion bans include bans on abortions after rape and incest.

The majority opinion in Dobbs v. Jackson Women’s Health says it is just about curtailing substantive due process in the context of abortion because “potential life” is involved. In his minority opinion, Thomas says otherwise — that the whole process of imbuing substantive due process with such robust meaning for all these years was a mistake. Even trusting the majority position, potential life is also implicated in the right to contraception — to the very cases that began this discussion of substantive due process. There is reason to fear.

The Dobbs decision is not just about control of women’s bodies, it is about control of women’s choices. It is about control of family-planning. This is particularly impactful in a country without mandatory paid maternity leave, without a robust social safety net. For all US citizens, the privacy to determine when and whether to have children is no longer robust — it no longer imbues in the people the ultimate decision-making power. And that is the end of US exceptionalism.

About the Author
Pamela Laufer-Ukeles is Professor of Law and Health Systems Administration at the Academic College of Law and Science in Hod Hasharon, teaching feminist legal theory, bioethics, health care reform, and elder law among other subjects. 
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