by Matt Barr

"Decisional autonomy" and the Constitution

Update: The post originally assumed knowledge of Judge Randolph's speech and Judge Friendly's unpublished opinion. I've added some background below. [11/29] George Will on Judge Friendly and The Speech here. [12/1]

You will not be surprised to learn that I am in almost complete, almost giddy, agreement with Judge A. Raymond Randolph's speech to the Federalist Society regarding an unpublished Judge Friendly opinion on the constitutionality of abortion regulation. The link above is to a PDF of the text of the speech itself. Here's some background.

In 1970, Judge Friendly, a giant on the Circuit level who was unaccountably never elevated to the Supreme Court, drafted an opinion in a case challenging the constitutionality of New York's abortion law. Before the opinion was finalized and issued, New York repealed its law, mooting the issue, so Judge Friendly's opinion went unpublished. It now newly resides at Harvard Law School awaiting indexing with his papers. Judge Randolph was a Friendly clerk at the time involved in the drafting of the opinion, which, if issued, would have been the first federal court opinion on the constitutionality of abortion laws. A (possibly more) useful summary can be found here, and commentary here (be sure to read the comments to this short post as well). Liberty Corner has an outstanding post on many of the points and implications arising from both the speech and opinion, the thrust of which is different than the one you're reading.

While I am in almost complete agreement with Judge Randolph and Judge Friendly, I write to take issue with what amounts to a tangential point in the speech but a point that can become critically important in other contexts.

Randolph notes that, quoting Richard Cohen, Roe v. Wade "confounds our common-sense understanding of what privacy is." The act of having an abortion procedure performed is extremely non-private. Privacy, "preserving seclusion, or keeping personal information secret," has nothing whatsoever to do with abortion. Granted. Senate Democrats bleating about a "right of privacy" in the Constitution, by which they mean the right to abortion on demand, homosexual sex, and other platforms of today's sex with anyone, any time, consequence free, on demand party have glommed onto a concept that is antithetical to what they mean. Probably smartly, insofar as running as the sex with anyone, any time, consequence free, on demand party would get them ferociously vocal support but only by a minority.

Randolph makes too much of a good point, though, when he says (pages 22-23 of the PDF):

In cases after Roe, a subtle change took place. The Court began stressing that the privacy involved was a woman's "private decision" to have an abortion, with the Court often italicizing the word "decision." But this explanation could not hold for long. It was not the decision to have an abortion that was at stake in Roe. It was the carrying out of that decision. People make all kinds of decisions in private. One person may privately decide to rob a bank. Another may decide in private to smoke crack cocaine. Someone else may decide to commit suicide, or to give a speech. That the decision is made in private says nothing about whether the person is exercising a constitutional right in carrying out the decision.

Again, we've run into inartful usage (or the best usage they can hope for, maybe; see above), not necessarily intellectual laziness, on the part of abortion proponents such as those sitting on the Court. The Constitution does not protect your decision to rob a bank, it's true, but it may protect your decision to abort your baby without internal inconsistency. For "decisional autonomy" or whatever they're calling it is a poorly chosen shorthand for the right and responsibility to make the decision. No one would argue that the prospective bank robber, and not the government or the people it represents or owners of the bank or of the money on deposit there, should be the one making the decision whether or not to rob the bank. Plenty of people, including vociferous opponents of Roe v. Wade as a constitutional matter, would argue that the child bearer, and not the government or the people it represents, should be making the decision whether to carry her baby to term. The proscribed act or its prohibition flow from a determination that the act should or should not be performed. By whom? "Decisional autonomy" seems to me as good a shorthand for that concept as any.

My problem, and ultimately Judge Randolph's, if I read correctly, is that while as a policy matter good arguments may exist on one side or the other -- the woman should make the decision because it's her body; the state should make the decision because it has a nondelegable responsibility to protect life -- this policy matter like most policy matters belongs in the sphere of the people's representatives in legislature, where laws that people don't like often don't get passed, and when they do get repealed quickly. The hubris, the gall, of anyone who argues that this policy decision unlike almost any other should be made by unelected, unaccountable judges whose rulings, we're told incessantly, should never, ever be overturned is sickening. Doubly sickening is that the very moment they don't have five votes anymore they won't stick to their guns: They'll say the Court is out of control and foisting its policy preferences on the rest of us. And most of them will look themselves in the mirror with no problem the next morning.

But the Constitution establishes limits on the reach of the government! you say. Yes, and happily, it spells them out in English text, not penumbraic code. The part of the Constitution that prohibits Congress from regulating or proscribing abortion is Article I, not emanations from the Fourth Amendment. The states are prohibited from depriving a person of life, liberty or property without due process of law, which, where English is your first language, means they must apply the same procedures to everybody, not that the federal government, any of its branches, has the power to tell them how to run things.

Read the speech, there's lots of good, thought-provoking stuff there.

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