The Production and Reproduction of Constitutional Norms

Abstract

Since 1973, Roe v.. Wade has served as shorthand in the United States for the proposition that women have a constitutionally protected right to abortion. Roe has also been used as a rallying cry for opponents of abortion rights who, in the words of Professors Reva Siegel and Robert Post, sparked" Roe rage" to mobilize a diverse set of interests into a social movement committed to the reversal of the decision. In 2007, constitutional lawyers in the United States got a new shorthand- Carhart-the first decision since the 1973 ruling in Roe v. Wade to uphold the facial validity of a statute that limits access to abortion without providing an express exception for risks to a woman's health, as contrasted to abortions "necessary to save the life of a mother." That statute, provocatively named by Congress the "Partial-Birth Abortion Ban Act of 2003," subjects doctors who "knowingly" perform a particular kind of abortion (designed to reduce the risk of infection to women) to criminal sanctions including prison terms of up to two years. One might be tempted to assign Carhart to a particularly contentious corner of law and morality in the United States and, absent an interest in reproductive rights, turn away. But Carhart offers a myriad of lessons about the role of courts in democracy, the evocative power of constitutional claims, the relevance of texts and precedents to constitutional judgments, the effects of national and transnational movements, and the autonomy of women, of health professionals, of Congress, and of judges-including those sitting on the Supreme Court. Further, in contrast to an oft-invoked presumption that judicial review displaces or silences democratic processes, the decisions in Roe and in Carhart demonstrate the dependency of democracies on dialogic interaction among the many groups within and across social orders. As this brief essay sketches, legal generativity from actors arrayed about the political spectrum is an artifact of adjudication in democratic polities.