November 13, 2004

'Splainin' Myself

by PG

In response to my student note proposal of "Restrictions on or prohibition of abortion, on the grounds of state interest or public morality, as a violation of the Fifth Amendment's Takings Clause," Will Baude emails,

I realize the post was tongue-in-cheek but how could a restriction on abortion implicate the takings clause? I suppose you could consider it a regulatory taking, but even then the compensation due would probably be zero under Brown v. Washington, since being unable to make that particular use of one's fetus doesn't clearly cause one to suffer economic injury... maybe time missed from work on unpaid maternity leave?

The "abortion prohibition as Fifth Amendment violateion" argument has been made by Susan E. Looper-Friedman in Keep your Laws Off My Body: Abortion Regulation and the Takings Clause, 29 New Eng. L. Rev 253. The SCOTUS precedent for the reason to prohibit abortion focuses on public morality, as opposed to fetus-as-legal-person. Under this view, one could say that the woman's body is the private property be taken for public use of public morality (so we can sleep easy at night without worrying about killed fetuses), without just compensation.

If one is going on the fetus-as-legal-person view, one is detaching Roe and subsequent abortion decisions from the Griswold through Lawrence line of privacy battling public morality cases, and basing the objection on abortion-as-murder. Then the government still is usurping the womanís right in her body, albeit on behalf of a specific person rather than for the sake of the public.

However, looking through the prism of takings is very controversial, because it explicitly treats the womanís body as property, somewhat along the lines of Posnerís economic analysis of rape. As Will says, there isnít an obvious economic injury in being forced to bear a child, except for women whose professions center around their physiques and thus are incompatible with pregnancy, such as athletes, runway models, etc.

It would be almost as creepy to compensate a woman for the publicís use of her body to carry an unwanted fetus as it would be to compensate her for an individual's use of her body for unwanted sex. Just because there is a "fair market value" for doing these things voluntarily -- whatever the going rates for prostitution and surrogacy are -- doesn't tell us how to compensate someone who has been forced to do them.

Tort compensations aren't quite the same, because aside from the direct economic damage claim (which with both sexual assault and forced childbearing would be minimal in most cases), the main award is through punitive damages. It would be absurd to be "punishing" for something that, under a legal prohibition of abortion, would be official government policy.

The Takings Clause isn't a practically useful analysis for any area unless there is a just compensation that can be made. Hence the tongue-in-cheek-ness of saying it can be applied to abortion.

November 13, 2004 04:30 PM | TrackBack

I like the 13th Amendment argument myself.

Posted by: Steve Brady at November 15, 2004 11:27 AM
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