Eugene Volokh on Alternative Justifications for Abortion Rights

Eugene Volokh has written an article in the Harvard Law Review arguing that abortion is constitutional. This is not shocking. The Supreme Court has made clear that abortion is constitutional. However, he is arguing -- rather than from the point of view of right to privacy -- abortion to save a woman's life is constitution because of the right to self-defense:

Three women lie in adjoining hospital rooms. A fourth lives a block away. All are in deadly peril.

Alice is seven months pregnant, and the pregnancy threatens her life. Her fetus has long been viable, so she no longer has the Roe/Casey right to abortion on demand. But because her life is in danger, she has a constitutional right to save her life by hiring a doctor to abort the viable fetus. She would even have such a right if the pregnancy were only posing a serious threat to her health, rather than threatening her life.

Katherine lives nearby. A person breaks into her home and seems about to try to kill her (or perhaps seriously injure, rape, or kidnap her). Just as Alice may protect her life by killing the fetus, Katherine may protect hers by killing the attacker, even if the attacker isn't morally culpable, for instance if he is insane. And Katherine has a right to self-defense even though recognizing the right may let some people use false claims of self-defense to get away with killing the innocent.

Ellen, back in the hospital, is terminally ill. No proven therapies offer help. An experimental therapy seems safe, because it has passed Phase I FDA testing, yet federal law bars its use outside clinical trials because it hasn't been demonstrated to be effective (and further checked for safety) through Phase II testing. Nonetheless, under Abigail Alliance for Better Access to Developmental Drugs v. Eschenbach, decided in 2006 by the D.C. Circuit, Ellen has a constitutional right to try to save her life by hiring a doctor to administer the therapy.

Olivia is dying of kidney failure in the room next to Alice's and Ellen's. A kidney transplant would likely save her life, just as an abortion would save Alice's, lethal self-defense may save Katherine's, and an experimental treatment may save Ellen's.

But the federal ban on payment for organs sharply limits the availability of kidneys, so Olivia will likely die if she must wait for a donated kidney. Barring compensation for goods or services makes them scarce. Alice and Ellen would be in jeopardy if doctors were only allowed to perform abortions or experimental treatments for free. Katherine likely wouldn't be able to defend herself with a gun or knife if weapons could only be donated. If organ providers or their heirs could be compensated, many more organs would be available, and Olivia would be much likelier to get the life-saving kidney. But federal law bans organ sales, and thus frustrates Olivia's ability to protect her life.

My claim is that all four cases involve the exercise of a person's presumptive right to self-defense -- lethal self-defense in Katherine's case, and what I call medical self-defense in the others.

This is a constitutional right: I will argue in Part II that Roe and Casey secure not just a pre-viability right to abortion as reproductive choice, but also a separate post-viability right to abortion as medical self-defense when pregnancy threatens a woman's life. And given that Alice has such a right to defend herself by getting an abortion, Ellen and Olivia should have the same right to defend themselves through other medical procedures. Alice is free to have surgery in which a doctor inserts devices into her body to excise a fetus that, tragically, threatens her life. Ellen should likewise be free to have a procedure in which a doctor inserts chemicals into her body to destroy a tumor that threatens her life. And the government should not place substantial obstacles in the way of Olivia's having a procedure in which a doctor inserts an organ into her body to replace a failing organ that threatens her life. It can't be that a woman has a constitutional right to protect her life using medical procedures, but only when doing so kills a viable fetus.

I will also argue, in Part III, that the right to medical self-defense is supported by the long-recognized right to lethal self-defense: the right to protect your life against attack even if it means killing the attacker. The right has constitutional foundations, in substantive due process, state constitutional rights to defend life and to bear arms, and maybe the Second Amendment. But even if it's treated as just a common-law and statutory right, our accepting it should lead us to accept a similar common-law or statutory right to defend one's life against medical threats as well as against human or animal threats. Even if the Court stops recognizing unenumerated constitutional rights, legislatures should presumptively protect people's medical self-defense rights just as they protect people's lethal self-defense rights, and as the public overwhelmingly supports women's abortion-as-self-defense rights. While a legislature need not fund people's self-defense, it generally ought not substantially burden people's right to defend themselves.

In Parts IV and V, I'll apply the abortion-as-self-defense and lethal self-defense analogies in more detail to experimental drugs and to compensation for organs. I'll argue that the right of medical self-defense offers an extra foundation for the Abigail Alliance holding that there is a constitutional right to use experimental therapies to protect one's life. And I'll argue that the right makes the organ sales ban presumptively improper and unconstitutional when the organs are needed to protect people's lives; some concerns about organ markets may justify regulations of such markets, but not prohibition.

I will also argue that, while this presumption is potentially rebuttable, it should take much to rebut it. Recognizing the right to medical self-defense as a constitutional right or a moral right means that the government should have a very good reason to substantially burden the right, and that the restriction should be as narrow as possible.

This is interesting stuff. I am pro-choice, but I have always been a little skeptical of the "right to privacy" legal reasoning. I just don't see it there.

However, I do think that a solid argument could be made that abortion is a constitutional right on two grounds:

• 1) We can classify an woman's body as by definition her own property, making the ability to dispense with it as they so choose implied by other property rights.
• 2) As Volokh argues, you can make clear that regulation of abortion constitutes an impediment to a woman's ability to protect herself from harm -- i.e. engage in medical self defense. In such cases, he argues, the burden of proof for a compelling state interest rests squarely on the government, and the government's ability to act is sharply circumscribed.

I haven't had a chance to read the article, but I am interested to read his implications in relation to the sales of human organs. If an individual has a right to defend themselves medically, then there is no reason why they can't do what they need to do to survive -- including the purchase of organs, so long as the individual they are purchasing from is not imminently harmed and gives consent.

Interesting stuff.

Described on the Volokh Conspiracy here.