Wednesday, April 25, 2007
Cass Sunstein on Gonzales v. Carhart
I wish I felt as optimistic as Cass Sunstein apparently does about the possibility of an equal protection based argument for the right to abortion, as articulated in Justice Ginsburg's dissent. In the L.A. Times (4/20), Sunstein writes:
IN THE LONG RUN, the most important part of the Supreme Court's ruling on "partial-birth" abortions may not be Justice Anthony M. Kennedy's opinion for the majority. It might well be Justice Ruth Bader Ginsburg's dissent, which attempts, for the first time in the court's history, to justify the right to abortion squarely in terms of women's equality rather than privacy.
...Ginsburg has now offered the most powerful understanding of the foundations of the right to choose — and it is important to remember that today's dissenting opinion often becomes tomorrow's majority. The equality argument has the support of four members of the court (Ginsburg and justices John Paul Stevens, David H. Souter and Stephen G. Breyer). We should not be terribly surprised if, in the fullness of time, Ginsburg's view attracts a decisive fifth.
I'm also interested in this part of Sunstein's comment:
Despite its advantages, the sex equality argument will not be convincing to committed opponents of the abortion right. If you believe that fetuses count as human beings, then you're going to believe the state has a right to protect them, even if the resulting laws undermine "a woman's autonomy to determine her life's course."
This passage buys into the very ambiguity that "committed opponents of the abortion right" typically exploit: what exactly is a "human being"? Not a "person," apparently, if by this we mean a constitutional person endowed with the same rights as any other born person. Upholding the ban here is not at all consistent with treating the fetus as a person since, as the majority opinion itself claims, the decision will not save any fetuses. If "human being" means something less than a full person, then it's not clear why a state interest in this non-person should necessarily trump "a woman's autonomy to determine her life's course."