The Two Abortion Rights, and Therapeutic Abortions as Medical Self-Defense:

The Introduction to my Medical Self-Defense article attracted enough interest that I thought I'd serialize the article on the blog; and the Harvard people were kind enough to let me do that. So let me follow the Introduction with a brief discussion of the Court's existing recognition of a constitutional medical self-defense -- the (surprisingly uncontroversial) right to get even late-term abortions when needed to protect the mother's life. (I do not rely on the more controversial right to get such abortions to protect the mother's health, including possibly emotional or psychological health, or on the right to get particular abortion procedures such as those at issue in Stenberg v. Carhart.) Recall that I'm arguing here both that the Court should recognize a constitutional right to medical self-defense, by analogy to the Court's past precedents, and that even if no such constitutional right is recognized, legislators and voters ought to recognize a moral right to medical self-defense.

Roe and Casey hold that the Constitution protects the right to an abortion. But this right actually consists of two different rights -- different in scope, justification, and popular support.

The first is the highly controversial right to abortion as reproductive choice, which generally allows pre-viability abortions on demand. The second is the right to abortion after viability when necessary “to preserve the life or health of the mother.” This is not the right to abortion on demand, since a woman must show a particular reason for a post-viability abortion. Nor is the right justified by the woman’s right to choose whether to bear a child: If the medical danger hadn’t arisen, the woman would have been obligated to bear the child to term.

Rather, the right is a right to medical self-defense -- the right to protect your life using medical care, even when this requires destroying that which is threatening your life. This right exists despite the interest in protecting the viable fetus’s life, an interest Roe and Casey held compelling enough to trump the abortion-as-choice right. Yet this right is largely uncontroversial, endorsed even by Chief Justice Rehnquist’s Roe dissent, by all the restrictive abortion laws in effect when Roe was decided, and by public opinion. Only 9% to 15% of Americans endorse the view that abortions should be banned even when the woman’s life is in danger. Compare this to the 42% to 58% of Americans who endorse the view that abortion should be generally banned, and available at most to protect the woman’s life or in cases of rape or incest, and the 33% to 46% who endorse a similar view but without even a rape or incest exception.

The medical self-defense right has been expressly recognized just in abortion cases. Yet it can’t be logically limited to situations where the defensive procedure is abortion, and rejected in cases where the woman needs to defend herself using experimental drugs or an organ transplant. Nothing about therapeutic postviability abortion makes it more deserving of protection than any other medical self-defense procedure.

One can’t distinguish postviability abortions on the grounds that they involve the woman’s reproductive choice. After viability the time for that choice has passed, and the ability to get a therapeutic abortion is a side-effect of the woman’s medical self-defense right, not her abortion-as-choice right. Nor can one distinguish therapeutic abortions on the grounds that they involve control over the woman’s own body. A patient’s adding substances (such as medicines or an organ) to her body, as well as removing substances from her body (say, through drugs that kill cancer cells), involves her control over her body as much as does a doctor’s inserting a surgical instrument to remove a fetus.

The medical self-defense procedures may cause some harm. Ellen’s experimental drug may shorten Ellen’s already short expected lifespan. It may also cost her money for what the government thinks may well be a false hope (though note that the pharmaceuticals in the Abigail Alliance case were merely not proven effective, rather than proven ineffective). Likewise, as I discuss [below], allowing compensation for organs has been said to potentially cause various other harms.

Yet Roe and Casey demand far more than a showing of some conceivable risk to some government interests before Alice’s right to abortion-as-self-defense may be restricted. Even the compelling interest in protecting the life of a viable fetus -- a fetus that is in many ways indistinguishable from a born baby -- isn’t enough to overcome Alice’s rights.

The same should hold for other medical procedures used to protect one’s life. Modest burdens on the right to medical self-defense, such as an informed consent requirement or a short waiting period, would be constitutional. But to impose a substantial burden on the patient’s right to protect her life through medical procedures, the government should have to show an extremely powerful reason for burdening the right, and to show the burden is genuinely necessary because the government’s goals can’t be achieved in less burdensome ways. And even when the interest is powerful in the abstract, it might still sometimes be rejected in favor of a right to protect one’s life, as the interest in protecting fetal life is rejected under the abortion-as-self-defense right.

There is, of course, an important limit to the right to medical self-defense (or to lethal self-defense): The right is constrained by the rights of others who aren’t threatening the woman’s life. No woman has a constitutional right to force a doctor to perform an abortion, even to save her life. Likewise, Ellen’s constitutional right to medical self-defense wouldn’t entitle her to steal experimental drugs.

But this is no different from the way other indisputably recognized constitutional rights operate. My First Amendment rights don’t let me steal a printing press, speak on your lawn, or trespass on private property to worship at the site of an alleged miraculous apparition (even if Employment Division v. Smith were overturned).

This is not because property rights are more important than free speech rights, free exercise rights, or self-defense rights; rather, it’s because even important rights are bounded by the rights of others. Naturally the exact scope of those rights of others -- for instance, whether they include the right to freedom from defamation, emotional distress, offense, or interference with business relations -- has long been the subject of debate. But in our legal system an inherent, and I think necessary, aspect of constitutional rights is that they are bounded by at least some rights of others. The existence of such boundaries doesn’t contradict the existence of the right, or weaken the right’s force when exercise of the right does not conflict with the rights of others.

Next week, I'll talk more about lethal self-defense, and then get to the payoffs, which have to do with experimental drugs and compensation for organ transplants.