Splitting the Baby: What Roe Got Wrong the Fifth Amendment Can Make Right

I believe in a woman’s right to bodily autonomy. But I also agreed, before Dodd, that the abortion framework set forth in Roe was not sustainable. Alito is right; it was on a collision course the day it was decided. So, I’m not surprised. I’m relieved we can finally reframe the conversation.

The Roe framework was grounded in a privacy right that stems from the Fifth Amendment’s Due Process Clause, which states that no person shall “be deprived of life, liberty, or property without due process of law.” Basing privacy rights on the Due Process clause makes them negative rights. Most of the Bill of Rights are negative rights, meaning they prohibit the government from doing something. This makes it easier for a repressive state to redefine its actions — a search that is not unreasonable, a punishment that is not cruel — to chip away at individual liberties. Notably, the proscriptive rights — like the Second Amendment’s right to bear arms — have fared better in the current judicial landscape. Grounding abortion in a negative right allowed the pro-life movement to, as Ruth Bader Ginsburg famously observed, chip away at it since Roe became law.

In chipping away at Roe, anti-abortion advocates successfully reframed abortion to focus on whether a fetus is viable or an abortion restriction is an undue burden. Ultimately, these are all red herrings that obfuscate the true issues. Pro-life proponents claim that their position is grounded on the idea that the potential life of an unborn child — at any stage and for any reason — is a public good that overrides individual autonomy. Pro-choice proponents frequently counter that the pro-life stance is not made in good faith because pro-life politicians advocate for government intervention on behalf of unborn children in the womb, but don’t care much about whether those children have baby formula or gun-free schools outside it. If abortion is only permissible pre-viability and restrictions are only impermissible if they pose an undue burden, the law will never adequately address the concerns of either the pro-life or pro-choice positions. The most ardent pro-choice proponents will maintain that a woman’s right to bodily autonomy trumps any potential life, whereas the most fervent pro-lifer will believe that all potential life is sacred, no matter what the circumstances of conception, stage of gestation, or viability of life.

A legal framework policing the reason for an abortion or parsing viability and gestational phases is both impractical and encourages government overreach. For example, if abortion is permissible in cases of rape, would a woman’s sworn statement that her child is the product of rape suffice, or would a criminal conviction and positive paternity test for the perpetrator be necessary? If abortion is permissible to save a mother’s life, would chemotherapy treatments a pregnant woman needs to treat her potentially deadly cancer, but which could terminate her pregnancy, constitute abortion? More importantly, is a world with regulations governing these unique and complex circumstances really one that any of us want to live in? Imagine a world in which the government forces you to donate blood, bone marrow, organs, or genetic matter to sustain another human life. Say you have Type O blood and the government designates you as someone who must donate X amount of blood a year. Or there’s a really brilliant 97 year old scientist who needs a lung transplant and you’re a less brilliant 25 year old with healthy lungs so the government drafts you to donate one of yours to keep this scientist alive. Cinematic dystopian hellscapes where the government colonizes and harvests some human bodies for the greater good abound. At its core, this is what abortion restrictions do. There are only two ways to go from here and only one of them is grounded in the Constitution.

The Fifth Amendment’s Taking Clause confers all persons with the proscriptive right to just compensation where “private property be taken for public use[.]” Today, the Takings Clause is most often used when the state builds infrastructure, like a road, or preserves it, like a historical building. In essence, it addresses situations in which the state leaves an owner in possession of their individual property but restricts either its use or disposition. Unlike much of the Bill of Rights, just compensation was conspicuously absent from the legal systems that inspired the Constitution’s drafters. Its drafter, James Madison, was a slaveowner and it’s widely believed that he included the Takings Clause because he and other slaveowners were concerned that legislators in the new nation, where the population of free states outnumbered slave states, would enact legislation that emancipated slaves without compensation. Indeed, in a letter to an abolitionist, he wrote, “Whatever may be the intrinsic character of that property, it is one known to the constitution and, as such, could not be constitutionally taken away without compensation.”

So, it’s surprising that, when the time came for the Supreme Court to rule on slavery in the infamous Dred Scott case, the Takings Clause received little attention. The Court elided the Takings Clause discussion by concluding that Dred Scott, a former slave residing in a free state, could not be free because, as an African American, he lacked citizenship rights necessary to sue for his freedom. The decision outraged abolitionists, who saw the ruling as halting the debate about slavery, states contend to pass conflicting laws about slavery, and ultimately the legal issue of slavery was only resolved by Civil War, the Emancipation Proclamation, and the passage of the 13th Amendment. Today, Dred Scott is widely regarded as the Court’s worst decision and an attempt to impose a judicial solution on a political problem. Pro-life commentators compared it to Roe and now pro-choice proponents compare it to Dodd. It’s not farfetched to imagine that abortion, like slavery, could result in similar political upheaval, especially if subsequent decisions are unmoored from the Takings Clause and, as Dred Scott did, elide the Fifth Amendment’s proscriptive rights by decreeing that individuals with a certain biological background simply don’t have Constitutional rights.

Absent a Constitutional amendment or legislation, we’re never going to resolve this issue by focusing on the right to an abortion. A Takings Clause framework tacitly acknowledges the validity of both the pro-life and pro-choice positions and shifts abortion jurisprudence away from a balancing test between this public interest and individual bodily autonomy to a question of compensation. If all potential life is valuable and a woman’s body is her own, the question becomes how much the state must compensate a woman for taking her reproductive property.

There is ample market data to price the monetary cost an individual incurs as a result of an unwanted pregnancy and forced birth. The costs of pre- and post-natal medical care, surrogacy, and even opportunity costs of lost earnings potential resulting from maternity leave are well-documented. Indeed, these costs are frequently litigated in family law, insurance, medical malpractice, personal injury, employment, and disability disputes. Abortion restrictive states should see a rash of lawsuits and bear the costs of defending them. States with a true commitment to unborn lives might settle these cases by compensating individual litigants or advance policies — such as expanded medical and child care and paid parental leave, which many European nations use to mitigate low birth rates — that encourage voluntary pregnancies and births. Or states might soften abortion restrictions when they can no longer freely outsource the consequences of involuntary births onto individuals. If litigating these disputes and enacting a regulatory regime to compensate individuals whose reproductive property has been taken sounds like a judicial nightmare and logistical nightmare, it is one of the states’ own making and Takings Clause litigation would force them to solve it.

In Kings 3:5–14, King Solomon was asked to resolve a dispute between two mothers, one of whom claimed that the other had stolen her infant after her own died in the night. Unable to determine which was the child’s real mother, Solomon asked for his sword to “split the baby” so that each mother had one half. The real mother exhorted Solomon to let the other mother have the baby; she was willing to make the ultimate sacrifice of giving the child up so that it might live. It may be distasteful to rely on arcane laws designed to bolster slavery to commodify reproductive rights but, in the absence of a constitutional amendment like the one outlawing slavery, the Takings Clause offers an opportunity to split the baby and avert the nation’s present collision course.