Abortion Access in an Era of Constitutional Infidelity

Abner Greene’s Against Obligation and Louis Michael Seidman’s On Constitutional Disobedience offer provocative, subversive, and frequently convincing arguments against wholesale fidelity to the Constitution. Greene makes the case that individuals, at times, have no duty to obey the Constitution as it has been interpreted and articulates a methodology for how the government should accommodate these legitimate acts of disobedience. Seidman, however, makes the case that we should abandon the “pernicious myth” that we are obligated to obey the Constitution at all. He argues that if the fiction of constitutional obedience was jettisoned altogether, the national discourse about the issues that divide us – like the legality of gun ownership, affirmative action, and same-sex marriage – would concern the merits of various approaches to governmental regulation of the issues. The discourse would not hover around the question of whether a particular governmental regulation comports with the mandates of the Constitution. The latter, existing discourse is useless and frequently counterproductive, according to Seidman, as it stymies “the open-ended and unfettered dialogue that is the hallmark of a free society.” This Essay asks a simple, but important, question: What will happen to abortion access in an era of constitutional infidelity? Will women continue to be able to terminate unwanted pregnancies if there is no obligation to follow the dictates of the Constitution? How one answers the question may determine whether Greene’s and Seidman’s visions of constitutional defiance should be advocated, pursued, and implemented. That is, if one believes that governments should not be able to compromise a woman’s ability to undergo an abortion procedure – even if a majority of citizens believe that no woman (or only some women, in certain circumstances) should be able to have an abortion – then one may find Greene’s and Seidman’s proposals unattractive. And quite terrifying