BALANCING ABORTION

Authors

Ball, Carlos A.

Abstract

Critics of Roe v. Wade and its progeny repeatedly contended that, in recognizing a fundamental right to choose an abortion, the Supreme Court ignored or significantly undervalued the states’ interests in regulating abortions. This Article’s examina- tion of the Court’s abortion jurisprudence during the Roe era, however, shows how it called for a meaningful balancing of the interests of both sides in ways that led the justices to uphold roughly as many abortion laws as they struck down between 1973 and 2020. In exploring the crucial role that the balancing of the interests of both the state and pregnant individuals played in the Roe constitutional regime, the Article contends that the Court deserves more credit than it received for attempt- ing, for decades, to accommodate the claimed interests of both sides while trying to find compromises on abortion-related questions that are deeply contested and controversial. The Arti- cle also examines why neither the antiabortion nor the pro- choice movement believed it advanced its political and legal pri- orities to emphasize and praise the fundamental role that the balancing of interests of both sides played in Roe and its prog- eny.

A well-informed understanding of this crucial aspect of the Roe constitutional regime is essential because it provides a stark contrast to the one-sided and uncompromising weighing- of-interests approach followed by the five-justice majority in Dobbs v. Jackson Women’s Health Organization. In overturn- ing Roe, the Dobbs Court deemed the state’s claimed interests

in regulating abortions to be constitutionally dispositive and the pregnant individual’s liberty and equality interests in choosing an abortion to be constitutionally irrelevant. In doing so, the Court did not avoid, as it apparently hoped, the need to balance interests; instead, Dobbs engaged in ex-ante or categor- ical balancing by reasoning that the state’s claimed interest in protecting fetal life is so important and so impacted by the de- cision to have an abortion that it requires that all future courts give the liberty and equality interests of pregnant individuals in not being forced to carry pregnancies to term against their will a constitutional value of precisely zero. Although the Dobbs Court may have believed that it was, in the name of judicial restraint, dispensing with the need to balance the interests of both sides, the Article explains why it is not possible to decide the constitutionality of abortion bans, such as the one at issue in Dobbs, without pitting the claimed interests of the state against those of pregnant individuals after assigning constitu- tional weight (even if it is only zero) to them.

Recommended Citation

Ball, Carlos A., BALANCING ABORTION, 64 Santa Clara L. Rev. 1 (2024).
Available at: https://digitalcommons.law.scu.edu/lawreview/vol64/iss1/1