Dworkin and Casey on abortion

Philosophy and Public Affairs

Volumn 25, Issue 2, 1996, Pages 140-170

  Stroud, Sarah ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

ANALYTICAL APPROACH; ARTICLE; CIVIL RIGHTS; COUNSELING; CULTURAL ANTHROPOLOGY; DECISION MAKING; ETHICS; FETUS; FIRST AMENDMENT; GENETICS AND REPRODUCTION; GOVERNMENT; GOVERNMENT REGULATION; HUMAN; INDUCED ABORTION; INFORMED CONSENT; JURISPRUDENCE; LEGAL APPROACH; MANAGEMENT; MORALITY; PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA V. CASEY; POLICY; PREGNANCY; PREGNANT WOMAN; RELIGION; RIGHT TO LIFE MOVEMENT; SOCIAL CONTROL; SOCIAL PSYCHOLOGY; SOCIOECONOMICS; UNITED STATES;

ANALYTICAL APPROACH; FIRST AMENDMENT; GENETICS AND REPRODUCTION; LEGAL APPROACH; PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA V. CASEY; RIGHT TO LIFE MOVEMENT;

ABORTION, INDUCED; CIVIL RIGHTS; COUNSELING; CULTURAL DIVERSITY; DECISION MAKING; ETHICS; FETUS; GOVERNMENT REGULATION; HUMANS; INFORMED CONSENT; JURISPRUDENCE; MORALS; POLICY MAKING; PREGNANCY; PREGNANT WOMEN; PUBLIC POLICY; RELIGION; SOCIAL CONTROL, FORMAL; SOCIAL VALUES; STATE GOVERNMENT; SUPREME COURT DECISIONS; UNITED STATES; VALUE OF LIFE;

EID: 0030101173     PISSN: 00483915     EISSN: 10884963     Source Type: Journal    
DOI: 10.1111/j.1088-4963.1996.tb00037.x     Document Type: Article

References (66)

1. The University of Chicago Law Review 59 (1992): 381-432;
2. reprinted (with identical pagination) in Geoffrey R. Stone, Richard A. Epstein, and Cass R. Sunstein, eds., The Bill of Rights in the Modern State (Chicago: University of Chicago Press, 1992). Further references to this paper will be cited in the text by title (abbreviated "UR") and page number. (I am concerned here only with the portion of the paper in which Dworkin discusses abortion rights.)
3. Life's Dominion: An Argument about Abortion, Euthanasia, and Individual Freedom (New York: Alfred A. Knopf, 1993). Further references to this book will be cited in the text by title (abbreviated "LD") and page number. Much (although not all) of UR is incorporated, with minor changes, into LD. When I give quotations from UR which are at least roughly duplicated in LD, therefore, I give the corresponding page number in LD after the page number in UR. (This should not be taken to imply that the exact words quoted from UR appear on the cited page in LD.)
4. 120 L Ed 2d 674. Further references to opinions in this case will be cited in the text by page number.
5. See Roe v. Wade, 410 U.S. 113 (1973), passim.
6. Dworkin explains in other articles that neither Justice Blackmun, nor subsequent judges who also referred to this alleged state interest, ever clarified its content. See "The Great Abortion Case," The New York Review of Books, June 29, 1989, pp. 49-53 (the relevant passage is from p. 52),
7. and "The Center Holds!" The New York Review of Books, August 13, 1992, pp. 29-33 (the relevant passage is from p. 30).
8. I here follow Dworkin's discussion of the two aims at UR, pp. 408-9, and LD, pp. 150-51.
9. It is not entirely clear whether Dworkin wants ultimately to say that convictions about abortion are themselves religious beliefs, or merely that such convictions turn or rest on religious beliefs about the sanctity of human life. At LD, p. 175, he explicitly makes both claims; but he usually makes only the latter.
10. LD, which is aimed at a wider audience than the law review article, is more concerned with the moral (as opposed to the legal) argument over abortion than is the article. For Dworkin's extended analysis of the moral issue in LD, see pp. 9-24, Chap. 2, and pp. 84-101.
11. Dworkin maps out the various different positions on abortion in terms of views about the source of life's value much more fully in LD than in UR. See especially pp. 84-101.
12. The legal argument that this belief should count as religious for purposes of the First Amendment also relies on a similarity-of-content test for religious belief. For the legal argument, see UR, pp. 421-424,
13. and LD, pp. 162-164.
14. This argument is given mainly in §§ XIII and XIV (pp. 418-27) of UR (which reappear, with minor modifications, as pp. 160-68 of LD).
15. Michael W. McConnell stresses this, making specific reference to Dworkin's argument, in "Religious Freedom at a Crossroads," in the same journal and volume as UR, at pp. 173-75.
16. For example, on p. 38 of LD Dworkin points out that the Jewish tradition sees abortion as mandatory in certain circumstances. (He takes this from a rabbi's testimony in McRae v. Califano, which concerned the 1976 Hyde Amendment prohibiting the use of Medicaid funds to pay for abortions.)
17. Dworkin admits this in a footnote (UR, p. 425, n. 69),
18. although for a reason different from the one I point out in the text. In that footnote (he makes a similar point at LD, p. 165), Dworkin concedes that some women's grounds for desiring an abortion may in fact "not [be] religious in any sense," i.e., that in some actual cases a woman's decision about abortion may fail to reflect her conception of what best respects the sanctity of human life. My point is different. It is that even when a woman does consult, and take seriously, her convictions about life's sanctity in making a decision about abortion, those beliefs may fall short of mandating an abortion, which is what would be required in order to ground a free exercise claim that she be permitted to have one.
19. The importance of a law's having a secular rather than a religious purpose is embodied in the current constitutional standard for permissibility under the establishment clause. In order for a statute to be permissible under the establishment clause, according to the three-part test set forth in Lemon v. Kurtzman, 403 U.S. 602 (1971), it (a) must have a secular purpose; (b) must not have a substantial effect of either inhibiting or advancing religion; and (c) must not foster excessive "entanglement" of government with religion. Dworkin also says that the question of a law's purpose is at the center of establishment-clause jurisprudence: the core of any interpretation of the establishment clause, he says, is an account of the difference between secular and religious aims of government (UR, p. 420;
20. LD, p. 162).
21. Dworkin uses "support" at UR, pp. 424-25
22. and LD, p. 166, as well as in the sentence quoted in the last paragraph.
23. Elsewhere he mentions "favoring one set of religious values over others" (LD, p. 175).
24. He carefully distinguishes between (impermissibly) supporting or favoring one side of an intrinsically religious dispute, and (permissibly) taking action to protect people's rights and interests which is supported or called for by religious groups. (Repealing slavery might well have fallen into the latter category, for example.) See UR, pp. 419-20;
25. LD, pp. 160-61.
26. "Force people to conform to" appears at UR, p. 420,
27. LD, p. 161;
28. "enforce" at UR, p. 426.
29. Dworkin frequently uses "impose" in this context: see, e.g., UR, p. 418;
30. LD, pp. 153, 159, 171-72.
31. Dworkin discusses the impermissibility of the government's "endors[ing] a controversial view about what respect for the intrinsic value of human life requires" at UR, p. 420
32. and LD, p. 161;
33. of its "declar[ing] or support[ing] a particular view about any essentially religious matter" at UR, pp. 424-45
34. and LD, p. 166;
35. of its "commit[ting] itself to a controversial interpretation of the sanctity of life" at LD, p. 165;
36. and of its "presuppos[ing] any particular conception of why and how human life is sacred" at UR, p. 424
37. and LD, p. 165.
38. I should in fairness note two reasons for not inferring from this passage that Dworkin thinks such a "display" would be permissible. First, one could argue that Dworkin is simply stating here which issues are governed by Roe, and that while Roe left open the possibility that such a "display" might be permissible, in fact Dworkin's view is that it is not. Second, the discussion in which this sentence occurs in UR was rewritten in LD to take account of some more recent Supreme Court cases, with the result that this sentence does not appear in LD. So perhaps Dworkin realized that it was a mistake by the time he was preparing LD, and it does not therefore represent his considered view. In any case, however, the larger point concerns what we ought to believe about abortion regulation if we accept the basic thrust of Dworkin's establishment-clause argument against prohibition. It is worth pointing out that we shouldn't then endorse the view expressed in the relevant clause of this sentence, regardless of whether Dworkin does or did at one time endorse it
39. Compare Casey, pp. 711-12: "even in the earliest stages of pregnancy, the State may enact rules and regulations designed to encourage [women considering abortion] to know that there are philosophic and social arguments of great weight that can be brought to bear in favor of continuing the pregnancy."
40. I do not mean that Dworkin says they are permissible. In fact Dworkin seems to have doubts about the permissibility of various types of restrictions: see, e.g., LD, pp. 173-76. There is clearly, however, at least the theoretical possibility on his view that many restrictions on abortion could turn out to be justified.
41. The distinction between neutrality in intent and neutrality in effect has been important in recent discussions of whether and in what sense liberalism should be seen as requiring state neutrality among conceptions of the good. See, for example, Jeremy Waldron, "Legislation and Moral Neutrality," in Robert E. Goodin and Andrew Reeve, eds., Liberal Neutrality (London: Routledge, 1989), esp. pp. 66 ff.
42. (The essay is also included in Waldron's Liberal Rights: Collected Papers, 1981-1991 [Cambridge: Cambridge University Press, 1993].)
43. In the Goodin and Reeve volume, see also Peter Jones, "The Ideal of the Neutral State," esp. pp. 14-18, 26-27.
44. See, for an example of this emphasis on effects, UR, p. 410, where Dworkin asks "whether a particular regulation - say, a mandatory waiting period or mandatory notification or consultation - makes abortion much more expensive or dangerous or difficult to secure, and so does unduly burden the right against conformity."
45. See also, on Casey, Dworkin, "The Center Holds!" pp. 30f.,
46. and LD, p. 174 (citing the difficulties women will face in having to travel to the abortion clinic twice);
47. and on Webster, a 1989 Supreme Court decision that upheld various restrictions, "The Future of Abortion," The New York Review of Books, September 28, 1989, p. 50. At all of these places Dworkin characterizes as constitutionally worrisome regulations that impose concrete obstacles on a woman's right to choose, rather than suggesting that such regulations may be impermissible because they serve no legitimate government purpose.
48. For elaboration of the concepts of an "undue burden" and a "substantial obstacle," which are now central to abortion rights jurisprudence, see the analysis of these terms in Casey, at 712-15, and below, pp. 167-69.
49. It also required that she be told that "materials printed and supplied by the Commonwealth . . . are available for her review," which materials included a description of the "probable anatomical and physiological characteristics of the unborn child at two-week gestational increments" (Casey, ibid., at 761, quoting the statute).
50. For such a theory, the spirit of which I believe I am following in this discussion, see Dworkin, Law's Empire (Cambridge, Mass.: Harvard University Press, 1986), especially Chap. 9, which concerns the interpretation of statutes.
51. Compare LD, p. 173:
52. "the question of whether a statute has a given purpose is a question of interpretation not of empirical psychology: it is a matter of judging whether, given what the statute does, . . . it makes interpretive sense to attribute that purpose to it." See also the following statements from Dworkin, Law's Empire: "Integrity requires [a judge] to construct, for each statute he is asked to enforce, some justification that fits and flows through that statute. . . . This means he must ask himself which combination of which principles and policies, with which assignments of relative importance when these compete, provides the best case for what the plain words of the statute plainly require" (p. 338). Dworkin considers the suggestion that the purpose of the Endangered Species Act is to protect rural areas from unsightly development: "[This justification] does not fit the text at all. For it is absurd to suggest that a statesman anxious to secure that policy would choose the fortuitous, even irrational, method of forbidding only and all projects that jeopardized species" (p. 339). Similarly (although for a somewhat different reason), Justice Blackmun presumably finds it "absurd to suggest that a statesman anxious to secure that policy" - that is, informed consent to medical procedures - would have produced the statute at issue in Thornburgh.
53. For example, a decision from the same term as Casey - R. A. V. v. St. Paul, 120 L Ed 2d 305 - seemed to some members of the Court not in the majority group to be strange for this reason. The majority, in an opinion by Justice Scalia, had argued that a state could not single out for prohibition, on the basis of its content, some subset of constitutionally unprotected speech. Other justices found it paradoxical that in the majority's view the law in question was unacceptable because it prohibited too little, not too much, speech.
54. A classic case using an "underinclusion" argument is Skinner v. Oklahoma, 316 U.S. 535 (1942). (I thank Andrew Koppelman for reminding me of this.) Other appeals to under-inclusiveness that are particularly pertinent to the present issue include Justice Harlan's concurrence to Welsh v. United States (398 U.S. 333, 356-61 (1970)) and the dissents by Justices Brennan, Marshall, and Stevens to Harris v. McRae (448 U.S. 297 (1980)). Welsh concerned the conscientious objection provision of the Selective Service Act, which exempts from military service those who object to war on religious grounds. Justice Harlan argued that this provision was unconstitutional on establishment-clause grounds because Congress, "having chosen to exempt" conscientious objectors from military service, "cannot draw the line between theistic or nontheistic religious beliefs on the one hand and secular beliefs on the other" (Welsh, at 356).
55. In Harris, Justices Brennan, Marshall, and Stevens decried the exclusion under the Hyde Amendment of medically necessary abortions from the class of medical services for which the federal Medicaid program will provide reimbursement. Justice Brennan mocked the majority opinion, which upheld the exclusion on the grounds that Congress can legitimately choose not to subsidize the exercise of a constitutional right. "Surely," he said, "the government could not provide free transportation to the polling booths only for those citizens who vote for Democratic candidates, even though the failure to provide the same benefit for Republicans 'represents simply a refusal to subsidize certain protected conduct'" (Harris, n. 6, at 336, quoting n. 19 of the majority opinion at 317).
56. As we noted earlier (see note 15 above), a determination of a statute's purpose plays an important role in evaluating its permissibility under the establishment clause. It is in fact unusual for a statute to be invalidated under the first of the three parts of the Lemon v. Kurtzman test, but this has occurred on a number of occasions. For example, in Stone v. Graham (449 U.S. 39, at 41 (1980)), the Court admitted in its per curiam opinion that the statute in question (which required that a copy of the Ten Commandments be posted in every schoolroom) had an avowed secular purpose. However, the Court rejected the alleged rationale for the statute, held that "the pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature," and struck down the law.
57. That the relation is one of support or confirmation, not entailment, suggests that Justice Blackmun is overstating things slightly when he says that the failure of Pennsylvania's proposed justification "reveals" the statute's "anti-abortion . . . purpose."
58. Here are two examples from abortion cases. Justice Marshall, in his dissent to Beal v. Doe (432 U.S. 438, at 454-55 (1977)): "it is all too obvious that the governmental actions in these cases, ostensibly taken to 'encourage' women to carry pregnancies to term, are in reality intended to impose a moral viewpoint that no State may constitutionally enforce"; and Justice Brennan, in his dissent to Harris v. McRae, at n. 4, 330-31: the fact that the Hyde Amendment, the subject of the case, is "entirely irrational" as a means of "serving legitimate social welfare goals" "exposes the Amendment for what it really is - a deliberate effort to discourage the exercise of a constitutionally protected right. . . . Th[e] goal [of preventing abortions] is constitutionally forbidden."
59. In "The Great Abortion Case," which discusses the Webster case, Dworkin characterizes the statute in question as "a statute designed to discourage abortions in spite of [Roe v. Wade]" (p. 49). The statute prohibited the performing of abortions in any facility "owned, leased, or controlled by this state" (p. 53, quoting the statute). Dworkin considers, and dismisses, a possible purpose which might have been claimed for the statute: "The true explanation of why Missouri adopted its stringent prohibition is not, of course, that it wants to avoid declaring itself neutral about abortion, but that it wants to make abortion as difficult and expensive as possible, in order to discourage its residents from exercising their constitutional rights. . . . That is impermissible: a state must not declare war on its own people because it is angry that the law is on their side" (ibid.).
60. We will return to this issue at pp. 163-66 below.
61. Of course there is the difference, in the case of childbirth, that the regulations will of necessity have less leverage, as the child will be born whether the woman has reviewed the state's materials or not. But this does not seem sufficient to explain why a state serious about promoting responsibility would make no attempt to foster such responsibility among women who plan to have their babies.
62. For a different argument to the effect that a mandatory waiting period cannot in the end be justified by appeal to the aim of responsibility, see LD, pp. 173-74.
63. For the purposes of this argument, I will not dispute the supposition that responsibility thus conceived is a legitimate state aim - although in fact a focus on ensuring that pregnant women make decisions about life and death responsibly might already be thought to raise troublesome questions. If responsibility is "the legitimate state purpose of promoting a responsible attitude toward the intrinsic value of human life" (UR, p. 432), then in a world of drive-by shootings it is hard to justify an exclusive or primary focus on the decisions of pregnant women.
64. I am indebted to an editor of Philosophy & Public Affairs for suggesting this type of argument to me.
65. Justice Scalia very effectively lambastes this aspect of the undue burden standard in his separate opinion. In response to the joint opinion's claim that regulation which has only an "incidental" inhibiting effect on the exercise of a right is not for that reason invalid, he says: I agree, indeed I have forcefully urged, that a law with general applicability which places only an incidental burden on a fundamental right does not infringe that right, . . . but that principle does not establish the quite different (and quite dangerous) proposition that a law which directly regulates a fundamental right will not be found to violate the Constitution unless it imposes an "undue burden." It is that, of course, which is at issue here: Pennsylvania has consciously and directly regulated conduct that our cases have held is constitutionally protected. The appropriate analogy, therefore, is that of a state law requiring purchasers of religious books to endure a 24-hour waiting period, or to pay a nominal additional tax of 1¢. The joint opinion cannot possibly be correct in suggesting that we should uphold such legislation on the ground that it does not impose a "substantial obstacle" to the exercise of First Amendment rights. (787; emphasis in original) Justice Scalia is insightful in his suggestion that the amount of the tax in his hypothetical example cannot be dispositive, or even really relevant, to whether it is constitutional.
66. For example, the joint opinion seems to confuse the state's taking steps to ensure that the woman's choice is informed and its attempting to persuade her not to have an abortion. See, e.g., 711-12, 718-19, and the following section of its summary of its holdings: "(b) We reject the rigid trimester framework of Roe v. Wade. To promote the State's profound interest in potential life, throughout pregnancy the State may take measures to ensure that the woman's choice is informed, and measures designed to advance this interest will not be invalidated as long as their purpose is to persuade the woman to choose childbirth over abortion" (715-16). As against this conflation, the aims of "enhanc[ing] the deliberative quality of th[e] decision" on the one hand, and "influenc[ing] a woman's decision" or "efforts to sway or direct a woman's choice" on the other, are very properly distinguished by Justice Stevens in his separate opinion, at 740-41. It is interesting to note that Justice Stevens cites Thornburgh (see above, p. 157) in his discussion, whereas the joint opinion specifically overrules Thornburgh insofar as it "find[s] a constitutional violation when the government requires, as it does here [i.e., in the law at issue in Casey], the giving of truthful, nonmisleading information" (718).