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A Standard of Review too Far

Of course, no matter how fabulous and brilliant I am, this post is going to piss you off. Why?

It's about abortion. (cue heavy dramatic music).

So, I've been thinking, what's a way to reconcile the moral claims of both sides of the abortion debate within our current legal framework. I'm not necessarily interested in doing this, but it's a way for me to avoid homework and still claim I'm learning some law.

So, the problem with the abortion debate is that the two sides are claiming conflicting rights - one, a right to bodily integrity and autonomy at the expense of a life; the other, a right to life and existence and the expense of personal control of the body. If we acknowledge one of these rights, it is indisputably a fundamental liberty. Thus, the way abortion jurisprudence has worked so far is that we stop just short of fully acknowledging either right, and thus ride a tightrope between the two that always threatens to knock us off due to high political winds.

But what if, instead, we simply fully acknowledged both rights? And subjected them both to strict scrutiny, as we do in any other substantive due process case? Thus, new restrictions on the right to HAVE an abortion would be subject to strict scrutiny, as burdens on the right to personal autonomy; and new laws EASING restrictions on abortion would be subject to strict scrutiny, as burdens on the right to exist. I'm not sure exactly how this would play out and what implications there would be in terms of predictability of decisions - but it's certainly an interesting concept. I'm unsure if existing law would be effected, but let's say it is.

For example, could current laws making it a crime to transport a minor across state lines for an abortion (assuming such actually exist - no research in this post!) be invalidated as not withstanding strict scrutiny? I'm not sure that a state has a compelling interest in preventing the performance of abortions in other states on their citizens.

Another example: could a state be required to put restrictions on abortion so that its easy access withstands strict scrutiny? I don't know what the compelling interest in "no restrictions" would be - but I'm certain it's the least restrictive alternative.

Ultimately, I'm really concerned about a larger issue - when two fundamental liberties bump against each other, how do you decide which one prevails? If, say, I want to read to the press corps outside the court trying me for murder my manifesto, but no reasonable attorney would allow me to do so, can I claim ineffective assistance of counsel for letting me exercise my right to free speech? Of course, I'm sure that issue or one like it has been litigated - I'm not interested in the actual outcome? The question for me is should I be able to claim ineffective assistance of counsel under those circumstances? Two fundamental liberties are in conflict - which one wins out?

This isn't really a terribly interesting question outside the context of abortion - because no one's entirely sure just how fundamental the liberties involved in abortion are. We're unsure of why and how a restriction on abortion is or isn't constitutional. For all its flaws, Roe at least gave us the gift of predictability. Right now, it seems that this issue boils down to "Anthony Kennedy's indigestion." If his gut pulls him one way, he rules one way; if his gut pulls him the other, lights out.

Yet more proof that lawyers would be better off if G-d and His servants would just stop trying to make law. I know my life would be easier if there wasn't anyone who was trying to either explicitly make this country a theocracy and/or impose what they think of as "values" on everyone else in the country.

So, yeah - this experiment didn't actually resolve anything - but it was fun and silly. Except when suddenly Justice Kennedy quotes me five years down the road....

Oh crap.

Full post as published by Supreme Dicta on February 11, 2008 (boomark / email).