By Brendan Barnes
October 15, 2013
Just two months ago, the Texas state legislature, by a special session, amended its laws on the availability of abortions by adding two new requirements for a legal abortion. First, any doctor who performs an abortion must have admitting privileges at a hospital near the location of the abortion procedure. Second, for medication abortions, the law requires doctors to follow a specific drug protocol—a protocol that has been labeled by several doctors as “outdated” and “more dangerous.” Texas, following the lead of eleven other states, has also criminalized abortions at and past the twenty week mark of pregnancy, four weeks less than the previous restriction. As a result of these changes to the abortion laws, several abortion clinics and advocacy groups have brought suit against the Attorney General of Texas in federal district court. They are seeking a preliminary injunction from the court to prevent the enforcement of these new laws. At the very heart of this lawsuit are the crucial and intertwined issues of women’s health, the power of states to regulate the constitutional rights of individuals, and shortcomings of the democratic process in safeguarding fundamental rights. Ultimately, if the Constitution is to protect the integrity of an individual, the state must not be able to control the highly personal choices of an individual or jeopardize the health and well-being of an individual by restricting those choices through legislation.
The United States Supreme Court has consistently held that the Fourteenth Amendment protects certain individual liberties from state interference. However, two competing approaches have historically influenced which liberties the Court has chosen to protect. The first of these is the theory of judicial restraint. The supporters of judicial restraint advocate a high degree of deference by the Court to state legislatures, as well as a historical and literal reading of the text of the Constitution. As such, the judicial restraint framework has recognized only a limited collection of individual rights to be protected by the Fourteenth Amendment. The second approach the Court has used to analyze fundamental rights is commonly called the constitutional right to privacy. The right to privacy, a more liberal standard than judicial restraint, has protected certain personal rights from governmental regulation—rights such as procreation, abortion, housing, and bodily integrity—even though the explicit wording of the Constitution did not mention those rights. This approach has focused not on exact text or history, but on how deprivation of the right will affect the person who is claiming that right. Depending on the composition of the majority at any given time, the Court has, for the past half-century, alternated between these two approaches to fundamental personal rights.
The right of a woman to terminate her pregnancy is perhaps the most controversial of all fundamental rights in the United States. The nationwide debate on abortion has burned for over forty years on alternating moral, political, and religious grounds. The resources spent on either side of the discussion have been staggering. While the Supreme Court has determined that a woman does have a fundamental right to have an abortion, it has qualified that right by holding the state may regulate abortions after the point of fetal viability. As a result, regulation of abortion by the states has been no less controversial than the right itself. The main area of controversy, engendered by the Supreme Court’s decisions in Planned Parenthood v. Casey and Roe v. Wade, is the ambiguity of the point at which the state may begin to regulate abortion. For example, New York permits a woman to have an abortion up to twenty-four weeks from the beginning of her pregnancy, while California simply prohibits abortions on a “viable fetus.”
However, some states, such as Texas, have enacted prohibitions before the twenty-four week mark and added additional requirements for abortion procedures. While the twenty week prohibition was not simply an arbitrary number, the reasoning behind the twenty week number has been disputed by a significant sector of the scientific community.Similarly, the other new requirements have also been criticized as being equally without credible scientific foundation. Though “passed in the name of safety,” the real purpose of the new requirements—which has been labeled “medically unnecessary”—seems to be to shut down “[abortion] clinics in smaller communities.” The new requirement is very likely to have that effect. Rick Perry, the governor of Texas, who called the special session of the legislature to pass the new laws, has even indicated that he would like to eliminate abortion altogether. Other opponents of abortion have called the new Texas laws a “great thing for women’s health.” In essence, the majority of the Texas legislature has taken an explicit stance not only on the legitimacy of abortion, but on the Supreme Court’s guidelines on viability as well.
The democratic majority of Texas has clearly imposed a law restricting the personal rights of a specific group of people here—that is not in dispute. The controversy lies in whether the Constitution prohibits what the state of Texas has done. Under the theory of judicial restraint, these new laws would very likely be upheld by a federal court. Since the Constitution does not once mention abortion and a democratic majority passed the laws, judicial restraint would call for the court to defer to the legislature’s determination. However, judicial restraint’s narrow and deferential framework may not be appropriate for an analysis of Texas’s new laws.
A variety of factors counsels against the use of judicial restraint in cases such as abortion, namely the implications for women’s health and individual rights. The Supreme Court has explained the significant health consequences for women when abortion is restricted:
Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved.
A woman’s interest in terminating her pregnancy, thus, is of substantial weight, both physically and psychologically. The restricted ability to have an abortion can create serious health complications that impact a woman’s well-being in every facet of life. For that reason, the Supreme Court has instructed that a woman’s “suffering is too intimate and personal for the state to insist, without more, upon its own vision of the woman’s role, however dominant that vision has been in the course of our history and our culture.” Moreover, an abortion is not the significant threat to a woman’s health that it once was. The Texas legislature’s justifications for the new laws, then, do not seem to bear much relation to the law’s likely effects.
The new requirements may have serious consequences for the health of women seeking an abortion. Since the admitting privileges requirement will likely have the effect of “forcing some women to make multiple trips of more than 100 miles to obtain an abortion,” the state’s new laws actually seem to threaten a woman’s health by severely limiting access to care. While the Court has acknowledged that the state’s interest in preserving life is strong enough to proscribe abortion once a fetus is viable, the Court has expressly limited that interest to the “stage subsequent to viability….” The Court added that any regulation before that period cannot place an “undue burden” on the woman’s right to terminate her pregnancy. Placing a woman at risk of adverse health effects would seem to be a clear burden on a woman’s right to terminate her pregnancy; it also places a substantial burden on a woman’s right to be free of unwarranted health complications. The new laws not only restrict, by a month, the window in which a woman may obtain an abortion, but they also have the very probable effect of limiting the places at which a woman may obtain an abortion.
The method by which Texas has recently limited the right of a woman to have an abortion illustrates the shortcomings of the democratic process when it comes to fundamental rights. A majority of the democratically-elected legislature has passed a law significantly limiting the exercise of a fundamental right. Advocates of judicial deference have argued that decisions about important rights are best left to the people and the legislature. However, it is important to consider that the decisions of several of the politicians who voted to pass the new laws were influenced by their own moral and religious views. There is no guarantee that the legislature is the safer forum for addressing the fundamental rights of citizens than the court. Throughout history, legislative majorities have prohibited rights now widely regarded as fundamental. Because of the nature of the democratic system, the views and rights of a minority group are always in danger of restriction by the state. In the case of Texas, the state has substantially limited a woman’s right to have an abortion, with a majority of the state legislature voting to pass a set of more stringent abortion laws—in spite of the Supreme Court’s holding that a woman has a fundamental right to terminate her pregnancy before the point of fetal viability. For that reason, the court may be the more appropriate setting for the recognition and protection of fundamental rights. The democratic legislature, by its very nature, will protect only those rights that garner popular support, regardless of the fundamentality of any unpopular rights. Given the essence of human nature, there is no perfect solution to guarantee the protection of important, but controversial, personal rights. However, since the Court is perhaps better able to remain insulated from the demands of the political majority, it may be the better vehicle to recognize and protect such fundamental rights.
Since the practice of judicial restraint does no more than enforce the decisions of the legislature, the right to privacy framework is the better method of evaluating the existence of a fundamental right. Those advocates pushing for the restriction of a personal right are not the persons who are exercising that right—and a burden on that right would not affect those advocates. The theory of judicial restraint does not account for that discrepancy. On the other hand, the right to privacy acknowledges that problem by examining the right in relation to the individual asserting it—obviating the possibility of oppressive majority lawmaking. The Supreme Court has previously adopted this line of reasoning in Casey and Roe, two of the Court’s most influential decisions on abortion rights. And though the right to privacy analysis has been criticized as subjective, it may actually be less so than analyses grounded in the theory of judicial restraint. Most importantly, however, the Casey type of analysis centers on the person rather than the popular reception a right has or has not received. In the case of a right such as abortion, where the right is so closely related to the health of a woman, a failure to focus on the person asserting the right may have detrimental consequences. After all, the rights guaranteed by the Constitution were intended to protect persons, not set history in stone.
Texas’s recent restrictions on a woman’s right to terminate her pregnancy indicate just how easily a majority may effectively legislate away a fundamental right. If certain fundamental rights are to be left wholly to the political process, the democratic minority would almost certainly lose all legal protection for any rights or beliefs not accepted by the majority. Such a hypothetical future cannot, and should not, come into existence. If the Constitution offers any fixed star, it must be one that does not allow the recognition of a fundamental right to rest in the hands of those who neither seek its protection nor desire to allow its continued existence.
 Erik Eckholm, Rights Groups and Clinics Sue Texas Over Provisions in Its New Abortion Law, N.Y. TIMES, Sept. 27, 2013, http://www.nytimes.com/2013/09/28/ us/rights-groups-and-clinics-sue-texas-over-abortion-law.html.
 Tex. Health & Safety Code Ann. § 171.044 (West 2013).
 Complaint at 2-3, Planned Parenthood v. Abbott, No. 1:13-cv-862 (W.D. Tex. Sept. 27, 2013).
 See generally Meyer v. Nebraska, 262 U.S. 390; Griswold v. Connecticut, 381 U.S. 479 (1965); Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood v. Casey, 505 U.S. 833 (1992); Lawrence v. Texas, 539 U.S. 558 (2003).
 The idea of judicial restraint in matters of fundamental rights seems to have arisen from the fallout of the Supreme Court’s Lochner-era jurisprudence. In Lochner v. New York, decided in 1905, the Supreme Court struck down a state law barring employees from working more than sixty hours per week on the grounds that the law infringed upon the private right of contract. 198 U.S. 45 (1905). The decision prompted a great deal of economic and political criticism. Less than forty years later, the Court overruled the Lochner line of cases, deciding the legislature was a more proper body than the Court to determine the social rights of citizens. West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937). Proponents of judicial restraint have argued that the Court is “the most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or even the design of the Constitution.” Moore v. City of E. Cleveland, 431 U.S. 494, 544 (White, J., dissenting). See also Washington v. Glucksberg, 521 U.S. 702 (1997).
 Roe v. Wade, 410 U.S. 113 (1973) (right to privacy analysis); Cruzan v. Director, Missouri Dep’t of Health, 497 U.S. 261 (1990) (historical analysis); Planned Parenthood v. Casey, 505 U.S. 833 (1992) (right to privacy analysis); Washington v. Glucksberg, 521 U.S. 702 (1997) (historical analysis); Lawrence v. Texas, 539 U.S. 558 (2003) (right to privacy analysis).
 Planned Parenthood v. Casey, 505 U.S. 833 (1992) (reaffirming Roe, but abandoning trimester framework). Viability in this sense means that the fetus will be able to survive outside of the womb.
 505 U.S. 833 (1992).
 410 U.S. 113 (1973).
 N.Y. Penal Law § 125.05 (3) (McKinney 2013); Cal. Health & Safety Code § 123468 (West 2013). Twenty-four weeks is widely considered the point of fetal viability.
 Legislators have claimed that scientific research has shown that fetuses can feel pain at the twenty week mark of pregnancy. Pam Belluck, Complex Science at Issue in Politics of Fetal Pain, N.Y. Times, Sept. 16, 2013, http://www.nytimes.
 Id. While the studies have indicated that a fetus may respond to certain treatments with an increase in stress hormones, many scientists believe there is very little credible evidence to suggest that a fetus can actually feel pain. A study published in the Journal of the American Medical Association concluded that fetal pain was not likely before twenty-seven weeks. Despite the lack of clear scientific support for fetal pain at twenty weeks, none of the twelve states that have adopted twenty week bans have amended those bans to reflect the scientific consensus—just the opposite has happened.
 Eckholm, supra note 1.
 Roe, 410 U.S. at 153.
 Casey, 505 U.S. at 851.
 Roe, 410 U.S. at 149(“[m]ortality rates for women undergoing early abortions, where the procedure is legal, appear to be as low as or lower than the rates for normal childbirth”).
 The legislature has claimed that the recent restrictions on abortion were passed for the health of the mother. See Eckholm, supra note 1.
 Eckholm, supra note 1.
 The new medication requirement raises the same concern.
 Roe, 410 U.S. at 164.
 Casey, 505 U.S. at 878.
 Though proponents of judicial restraint often claim to adhere to the Framers’ original view of the Constitution, the Framers instead warned of the nature of majoritarian decision-making. James Madison cautioned that majorities will often have only their own interests at heart, while their sheer numbers will leave “nothing to check the inducements to sacrifice the weaker party.” The Federalist No. 10 (James Madison). Madison also notes that people are “much more disposed to vex and oppress each other than to co-operate for their common good.” Id. Alexander Hamilton opposed the addition of the Bill of Rights to the Constitution because he feared a list of specific rights would be interpreted as allowing the government to control those rights that were not expressly listed. The Federalist No. 84 (Alexander Hamilton) (“[The Bill of Rights] would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext [for the government] to claim more [powers] than were granted. For why declare that things shall not be done which there is no power to do?”). Madison further warned that a majority “must be rendered… unable to concert and carry into effect schemes of oppression.” Federalist No. 10. In addition to revealing the Framers concerns about the democratic process, what these passages illustrate is that the justices who advocate judicial restraint—and deference to the legislature—often pick and choose what language of the Framers to use.
 Jillian Rayfield, “Rick Perry: My Goal Is to Make All Abortion “A Thing of the Past,” Salon (Dec. 11, 2012, 8:51 PM), http://www.salon.com/2012/12/12/rick_perry_my_goal_is_to_make_all_abortion_a_thing_of_the_past (“Again, the ideal world is a world without abortion….Until then, however, we will continue to pass laws to ensure abortions are as rare as possible under existing law”).
 The Federalist No. 48 (James Madison) (“[the legislature’s] constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes”).
 Griswold v. Connecticut, 381 U.S. 479 (1965) (use of contraception); Loving v. Virginia, 388 U.S. 1 (1967) (interracial marriage); Roe v. Wade, 410 U.S. 113 (1973) (abortion); Lawrence v. Texas, 539 U.S. 558 (2003) (consensual sexual activity between homosexuals). One of the many problems with the majoritarian approach to fundamental rights is that it attempts to cast the will of the majority onto the future, thereby stifling societal growth and change.
 The Federalist No. 51 (James Madison) (“If a majority be united by a common interest, the rights of the minority will be insecure”).
 The great multitude of Free Speech cases illustrates the continuous prevalence of legislation designed to curb the important rights of minority groups, especially unpopular minority groups. See Schenck v. U.S., 249 U.S. 47 (1919) (socialists); Cantwell v. Connecticut, 310 U.S. 296 (1940) (Jehovah’s Witnesses); Dennis v. U.S., 384 U.S. 855 (1966) (communists); Brandenburg v. Ohio, 395 U.S. 444 (1969) (Ku Klux Klan); Snyder v. Phelps, 131 S. Ct. 1207 (2011) (Westboro Baptist Church). The common thread between the laws in these cases is that they were intended to silence the speech of groups the majority did not support.
 This proposition has been consistently disputed by advocates of judicial restraint. See Lawrence v. Texas, 539 U.S. at 593 (Scalia, J., dissenting) (“fundamental liberty interests must be “so rooted in the traditions and conscience of our people as to be ranked as fundamental”). Judicial restraint has the ultimate effect, however, of leaving politically-vulnerable populations at the mercy of the legislative majority—just the contingency that Madison and Hamilton warned against.
 See generally Adam B. Wolf, Fundamentally Flawed: Tradition and Fundamental Rights, 57 U. Miami L. Rev. 101 (2002); Buckner F. Melton, Clio at the Bar: A Guide to Historical Method for Legists and Jurists, 83 Minn. L. Rev. 377 (1998); David Crump, How Do the Courts Really Discover Unenumerated Fundamental Rights? Cataloguing the Methods of Judicial Alchemy, 19 Harv. J.L. & Pub. Pol’y 795 (1996). See also, supra, note 24.
 Seventy years ago, Justice Robert Jackson famously proclaimed: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” West Virginia State Bd. of Ed. V. Barnette, 319 U.S. 624, 642 (1943).