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Legal Issues of Roe v. Wade

Daniel J. Castellano, M.A.

(2006, rev. 2011)

1. Overview
2. Facts of the Case
3. Summary of the Supreme Court’s Rulings
4. Preliminary Findings
5. Historical Background
6. Possible Intent of Abortion Legislation
7. Constitutional “Right of Privacy”
8. Substantive Due Process Jurisprudence
9. Application of the Court’s Jurisprudence to the Texas Statutes
10. Errors of the Verdict
11. Effect of the Verdict

1. Overview

Supreme Court appointments in the United States can be highly contentious political theatre, where nominees are subjected to fiercely partisan interrogation about their personal views on abortion and other social issues. This may seem a strange spectacle to observers in other countries, where judicial appointments tend to be drab, mundane formalities. Unlike most of their foreign counterparts, U.S. Supreme Court justices wield formidable power in the domain of social policy, subjecting state legislation to the higher criteria of civil rights jurisprudence. In recent decades, this jurisprudence has often been more closely related to the justices’ policy preferences than to any explicit constitutional proscription. The heyday of this socially “activist” jurisprudence was during the Warren and Burger Courts of the 1960s and 70s. The later Rehnquist Court, by contrast, showed more restraint in declaring new civil rights, but it upheld nearly all of the Warren and Burger precedents, so that the Court today retains broad discretionary power in the regulation of social legislation.

The most controversial of the civil rights cases is undoubtedly Roe v. Wade, 410 U.S. 113 (1973), which has been applied in a way that effectively establishes an unwritten constitutional right to have an abortion, though the opinion of Roe itself made no such assertion directly. Roe represents a twofold failure of judicial social engineering, since it (1) applied a uniform legal solution over all the states on a highly contentious issue that opens deep moral, religious, and philosophical fissures, and (2) was poorly reasoned and not grounded in law, giving it little intellectual legitimacy. We are only going to consider the second aspect of Roe, its failing as a legal argument. Roe’s intellectual inadequacies are well known and criticized among legal scholars, even those who personally favor a right to abortion.[1] These criticisms have not reached a larger audience, however, due to the superficial coverage of legal matters by the mass media. Accordingly, we need to clear some common misconceptions before examining the opinion of Roe itself, which is often cited but seldom read.

First of all, Roe v. Wade did not legalize abortion. Before Roe, abortion on demand was already legal in several states, while it was available under restricted circumstances in many others, and all states recognized an exception to save the life of the mother. Abortion statutes gradually became liberalized in more states as social attitudes changed.[2] Roe short-circuited this development[3] by radically restricting the states’ right to regulate abortion, and effectively mandating abortion on demand for the first two trimesters. Overturning Roe would not make abortion illegal anywhere, but it would allow each state to decide for itself under what circumstances abortion is permissible. A legislative solution prevails in nearly all democratic nations, most of which have achieved a compromise reflecting the values of a pluralistic society.

Roe imposed one extreme view of the abortion issue upon everyone in the U.S., disenfranchising half the nation and radicalizing social and religious conservatives. A nation without Roe would not only be prudent, but it would also be lawful, as the U.S. Constitution says nothing about abortion, entrusting the sovereign states and their constituents to regulate this issue just as they are trusted to legislate the serious matters of murder, manslaughter, and larceny, and to set penalties for each. It is difficult to coherently justify the judicial overreaching of Roe without allowing the federal courts to set policy for every other aspect of criminal law.

Since advocates of legalized abortion have misleadingly identified upholding Roe with legalizing abortion, the basic parameters of the debate are not understood by most Americans. A judicial nominee is vilified for daring to speak disparagingly of Roe, as though this were equivalent to wishing to criminalize abortion. Overturning Roe would not criminalize abortion, unless duly elected state legislatures so chose, and even then they could only do so in a manner that respected constitutional rights. Requiring a judicial nominee to praise Roe is practically requiring him to have no intellectual integrity. It is nearly impossible to honestly examine the decision without finding serious legal and logical flaws, so having a pro-Roe litmus test practically guarantees intellectual and moral mediocrity on the nation’s highest court. Most “pro-choice” politicians fail to realize this, as they have internalized the false equation between upholding Roe and legalizing abortion.

Contrary to popular perception, the majority opinion in Roe did not affirm a constitutional right to privacy, much less a right to have an abortion. The Court attempted to define the extent to which the interests of the state could regulate this particular sphere of personal privacy, without denying the principle that the state could regulate any private sphere, with sufficient cause. While denying an unqualified right to privacy or right to do what one pleases with one’s body, the Court nonetheless found that in this particular case the state had insufficient cause to intrude in this private sphere. The Court applied a high “compelling state interest” standard, contrary to established practice for Due Process cases. This and other specious reasoning enabled the Court to strike down all of Texas’ criminal abortion statutes and to establish an arbitrary trimestral scheme for future abortion legislation. In the companion case, Doe v. Bolton 410 U.S. 179 (1973), the Court’s majority interpreted a woman’s “health” broadly enough to effectively enable abortion on demand at any stage of fetal development.[4]

With its decisions in Roe and Doe, the Supreme Court effectively established abortion as a fundamental right, even though such a notion was unknown to earlier jurisprudence and foreign to the minds of most Americans in 1973.[5] Post-Roe rulings established that abortion was exempt from many of the safety regulations common to other medical procedures, and from spousal and parental notification.[6] The Rehnquist Court pulled back from this radical position, most notably in Planned Parenthood v. Casey 505 U.S. 833 (1992), where the Court acknowledged that it had not adequately recognized the state’s legitimate interest in potential prenatal life, and so states may try to persuade women to reconsider their pregnancy, as long as this did not impose an “undue burden” on the woman’s ability to procure an abortion. In subsequent rulings, however, the Court effectively reneged on this promise, and interpreted “undue burden” so broadly that states could not take action to inform women of their options.[7] This recent jurisprudence belies the myth that “no one wants abortion,” since there is a strong bias toward women actually having abortions, rather than merely having the option. If it were simply a question of liberty, there should be no objection to allowing the state or private entities trying to persuade women to consider other options.

Roe and all subsequent abortion cases have established a culture where the Supreme Court, rather than the legislature, dictates the content of abortion legislation, often in painstaking detail. Though Roe itself had little regard for the text of the Constitution and effectively ignored a century of prior jurisprudence, Roe’s defenders have solemnly appealed to the principle of stare decisis to preserve Roe as an established precedent. Revolutionaries despise traditional authority until they gain power, at which point authority again becomes sacred. Since the legal arguments of Roe are virtually nonexistent, it can only be defended by the argument from authority, stare decisis, a principle which Roe itself thoroughly repudiated.

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2. Facts of the Case

Jane Roe, a pregnant single woman in Dallas County, Texas, filed a class action suit challenging the constitutionality of Texas’ abortion statutes, which prohibited abortion except to save the mother’s life. She was joined in the suit by Dr. James Halliford, who had two pending criminal abortion lawsuits against him, and by John and Mary Doe (distinct from the Doe of Doe v. Bolton), a married couple with the wife not pregnant. The Does claimed injury based on the burden of possible future pregnancy. The parties sought both declaratory and injunctive relief, meaning they wanted the courts to rule on the constitutionality of the statutes and to prohibit enforcement of these statutes.

A federal District Court declared the abortion statutes void on account of vagueness and infringing Ninth and Fourteenth Amendment rights, but denied injunctive relief. The Does’ case was dismissed. In its declaratory judgment, the District Court found that the Texas statutes overbroadly infringed the “fundamental right of single women and married persons to choose whether to have children” it drew from the Ninth and Fourteenth Amendments. All parties appealed directly to the Supreme Court.

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3. Summary of the Supreme Court’s Rulings

The Supreme Court made the following rulings:

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4. Preliminary Findings

Before ruling on the substance of the case, the Court had to determine if these were adjudicable grievances.

First, the Court considered the question of whether the case was moot because Roe’s pregnancy had ended, as was the case for any other woman pregnant at the time the class action suit was filed. Since the appellate process generally takes much longer than nine months, allowing the end of a pregnancy to render a claim moot would effectively deny the right of appeal on pregnancy-related issues, so justice required leniency in this case.

Dr. Halliford had no legal standing to sue in this case, since he was a defendant in pending state actions that were treating the same matter. The Court therefore overturned the declaratory relief granted by the District Court to Dr. Halliford.

The Does’ claim was predicated on speculative consequences of failure to procure abortion, such as failed contraception and possible future pregnancy. Without an actual case or controversy, they had no standing to sue.

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5. Historical Background

Delivering the Supreme Court’s majority opinion, Justice Harry Blackmun professed his intent to address the issue of abortion constitutionally, without regard to philosophical predilections. Notwithstanding this claim of legal objectivity, Justice Blackmun’s opinion contains a discussion of the history of abortion that reveals his philosophical biases, overstating evidence in their favor and ignoring unfavorable evidence.

First, Blackmun asserts that the ancients practiced abortion without scruple. The historical reality was much more complex, affording no simplified description, as Greek and Roman social mores varied greatly by region and social class. Still, it is true that abortion was widely practiced to varying degrees in the ancient world.

Since the Hippocratic Oath explicitly condemns abortion in two places, Blackmun takes pains to diminish its importance as an ethical standard. To this end, he uncritically adopts Ludwig Edelstein’s theory that the Hippocratic Oath was merely a “Pythagorean manifesto,” notwithstanding the fact of its widespread use through the ancient world. Even if we accepted that the Oath was Pythagorean in origin, most of the doctors who solemnly pledged it were not Pythagoreans, and considered themselves bound by its words, invoking a curse upon themselves should they swear falsely. While many of the Oath’s injunctions were violated by ancient doctors, this does not disprove that the Oath was intended to be an ethical standard,[8] just as the existence of crime does not disprove the normative intent of a law.

Blackmun mentions only in passing that the Hippocratic Oath became a universally accepted ethical standard in the early Christian era, as if confining the Oath to Christians, which is to say nearly all Europeans, somehow vitiates its relevance.[9] This was a nearly two thousand year period, during which European jurisprudence as we know it was developed, including English common law, which the Court elsewhere respects as relevant precedent. It is difficult to justify invoking the authority of classical antiquity and early modern English common law, while casually overlooking all that intervened. This is clearly an example of selecting only evidence favorable to one’s thesis.

The ethics of the Hippocratic Oath prevailed throughout the entire Christian era, which is most of recorded Western history, and into modernity, long after religious institutions had ceased to hold preeminence in society. Illicit abortions were practiced, of course, but rarely by doctors. Nonetheless, abortion was universally condemned in Europe as a gravely immoral practice, throughout the time that English common law was shaped (i.e., before 1800) and beyond. This inconvenient fact is deemed irrelevant to Blackmun’s history of Western attitudes toward abortion.

Blackmun notes that English common law criminalized abortion only after the “quickening,” when animation was thought to begin. The justice appears to imply that there was an ethical tolerance for earlier abortions, though in fact such abortions were impractical since a woman could not know if she was pregnant until quickening. Indeed, a common defense in criminal abortion cases was that the abortionist did not know the woman was pregnant and so could not have killed the child intentionally. The quickening might therefore be considered legally and ethically analogous to conception in modern jurisprudence, since it was then the earliest moment when a woman was known to be pregnant. There is little definite evidence that post-quickening abortion was a common law crime, but that could be due to the difficulty of prosecution or the strong social taboos that made abortion rare. As any scholar of medieval and early modern European history knows, there is overwhelming textual evidence that abortion was considered a grave sin and not socially tolerated, its formal legal status notwithstanding.[10]

There was ambiguity in common law as to whether abortion was a capital offense or a lesser crime, so King James assented to an Act to prevent the destroying and murthering of bastard children in 1623, and Queen Anne did likewise for Ireland in 1707. The legal meaning of these acts was disputed, so in 1803, Lord Ellenborough’s Act replaced them and clarified that abortion was a capital crime that should be tried according to the same rules as a murder trial. Abortion attempts before quickening were a lesser though serious felony, punishable with up to fourteen years in prison. The severity of the 1803 law was not a modern invention as Blackmun suggests, but is entirely consistent with all the ethical and legal writings from previous centuries that Blackmun has conveniently ignored, making the 1803 law seem to come out of nowhere. If abortion was considered a capital crime in 1803, when English politics was more secular than ever before, it is hardly credible that the much more austerely religious English of earlier centuries could have had a more lenient attitude, as this act was considered utterly contrary to Christianity. Nonetheless, Blackmun relies on absence of early legal evidence to suggest that strong aversion to abortion was a nineteenth century innovation, rather than a simple consequence of the expansion of the modern state into the domestic sphere. Blackmun fails to consider that domestic moral issues had formerly been the domain of civil society: towns, feudal lords, churches, or paternal authority.[11]

There were few prosecutions for abortion in the nineteenth century, and far fewer convictions, as it was difficult to prove that a doctor knew a woman was pregnant when administering a drug. (Most abortions were non-surgical.) The criminal penalty was lessened in 1837, as part of a general movement away from the death penalty, and the quickening distinction was removed, though pre-quickening embryonic development was not well observed until later in the century. Doctors did practice “therapeutic abortion,” where the fetus was killed in order to save the life of the mother, or where the mother had a serious disease such as tuberculosis which made pregnancy dangerous. Abortion for any other reason was called “criminal abortion” in medical literature, into the early twentieth century. There was no explicit legislation drawing the line between criminal and therapeutic abortion, however.

The judge in Rex v. Bourne (1939) interpreted English law as allowing abortion when necessary to preserve the life of the mother. This was but a formal acknowledgement of the long existing medical practice of therapeutic abortion, which had been hitherto left to a doctor’s discretion. However, the judge went further, and allowed that an abortion could be construed as “preserving the life of the mother” if continuing the pregnancy would “make the woman a physical or mental wreck.” This dubious construction of an 1861 act which mentioned no such exceptions was designed to impose a more modern, liberal attitude. This ideological shift was later codified in the Abortion Act of 1967, which allowed abortion to prevent injury to the woman’s “physical or mental health.”

In the early United States, English common law prevailed in the absence of statutory law. Several states followed Coke in characterizing willful abortion (i.e., post-quickening) as a common law crime, though less serious than murder. Blackmun believes this was an error, and that abortion was not a common law crime, Coke’s testimony notwithstanding. From the absence of explicit common law proscriptions, the justice erroneously infers that women enjoyed the freedom to have abortions prior to the establishment of abortion statutes in the nineteenth century. Nothing could be in greater contradiction with available historical evidence. The absence of laws in this regard simply reflects the lesser intrusiveness of the state in domestic affairs; it does not imply any sort of social acceptance for abortion. Domestic matters were regulated by other authorities, such as the patriarchal head of the family. Blackmun seems to have momentarily forgotten how unfree women were prior to the late nineteenth century, supposing that they had sufficient liberty to procure abortions against the will of their fathers or husbands. Blackmun also falsely supposes that women themselves would have recognized such a right, which would have been utterly contrary to the ethics of the Christianity they professed. It is true that in earlier times the state usually did not intervene in abortion cases, but neither did it license marriage or regulate domestic life in general.

Abortion fell under the purview of statutory law when Connecticut passed its anti-abortion statute in 1821. Other states followed suit, but abortion was not a capital crime, and was only a misdemeanor in some cases. After the Civil War, the majority of states established anti-abortion statutes. By the end of the nineteenth century, the quickening distinction had largely disappeared. Exceptions for the mother’s health were allowed in Alabama and the District of Columbia.

In the U.S. as elsewhere, the medical profession unanimously opposed abortion (except for limited cases of medical necessity) through the nineteenth century and into the early twentieth century. This position was largely reversed by 1970, reflecting more liberal social attitudes. Strikingly, Blackmun can cite no evidence of a new consensus favorable to abortion prior to 1967. He can scarcely hide the fact that it is tolerance of abortion rather than its criminalization which is of very recent vintage, contrary to the skewed history he presents.

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6. Possible Intent of Abortion Legislation

Justice Blackmun discusses possible reasons for late nineteenth-century anti-abortion laws in the United States, ignoring the obvious possibility that they merely codified a pre-existing ethos. He does recognize that opposition to abortion was not a product of Victorian attitudes on sexuality, and notes that no court or commentator of the time ever made a connection between criminalization of abortion and restricting sexual activity.

Some had argued that the state’s interest in prohibiting abortion was to protect the woman from dangerous procedures. Blackmun instead reasoned that the danger of illegal abortions actually strengthens rather than weakens the state’s interest in regulating abortion. This is a striking difference from modern “pro-choice” rhetoric, which illogically invokes the harmfulness of illegal abortions as a justification for legalization. This specious reasoning was not used in Roe, nor in the English liberalization of abortion law, which appealed to a therapeutic justification.

Another possibility considered by Blackmun is that the statutes were enacted with the intent to protect prenatal life. This view, he said must be reconciled with several facts. First, the woman herself was not prosecuted for attempting to procure abortion. This does not prove that the law was created solely in the woman’s interest (unlikely, given the social climate of the time), but only that she was not considered the perpetrator of the abortion. Second, the penalties were non-capital, and in many cases the crime was only a misdemeanor. This does not preclude the existence of an intent to recognize prenatal life, though it may indicate that the right to life of the unborn was not always considered equal to that of postnatal life.[12]

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7. Constitutional “Right of Privacy”

Next, the Court’s opinion proceeds to Constitutional issues. Blackmun notes that there is no explicit right to privacy in the Constitution, but the rights guaranteed by several amendments imply the existence of zones or areas of personal privacy if they are to have any substance. Only rights that are “fundamental” or “implicit in the concept of ordered liberty” may be found in this limited right to privacy.

The Court majority believes that the right of privacy is contained in the Fourteenth Amendment’s concept of liberty, but allows the possibility that it might be in the Ninth. Blackmun reasonably argues that this right encompasses the right to terminate a pregnancy (suspending for now the question of the rights of the fetus), owing to the constraints on her liberty the denial of this right would impose.

The Court in Roe explicitly denies “that the woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses.” The state can regulate this area of privacy, as it regulates other private areas, if some important state interest is involved.

The majority opinion cites many precedents that defined this area of privacy and in some cases overturned abortion statutes. The cases declaring state abortion laws unconstitutional, on account of vagueness, broadness or abridgement of rights, are all from 1969 to 1972. These lower court rulings determined that the state’s interests in protecting women’s health and prenatal life did not justify the broad restrictions imposed by the statutes.

The Supreme Court now imposes upon the states the standard of showing a “compelling state interest” to regulate the termination of pregnancies, as had the District Court. This standard, as Justice Rehnquist notes in his dissent, had been previously used for applying the Equal Protection clause, but never for the Due Process clause.

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8. Substantive Due Process Jurisprudence

There are two distinct issues of constitutional interpretation here: (1) substantive due process, and (2) the “compelling state interest” standard being applied to the Due Process clause. “Substantive due process” is the idea that due process of law is not merely the lawful procedures defined by a state, but rather these procedures must respect the personal rights of citizens, and it is within the purview of the courts to determine whether the legal procedures of a state respect these rights. In other words, the notion of due process imposes substantive constraints on the use of state power, even if it is lawfully authorized. A logical implication of this belief is that the courts can review the content of legislation in order to determine if it respects the personal rights presupposed by the notion of due process.

The Fourteenth Amendment guarantees that no citizen shall be deprived of “life, liberty, or property, without due process of law.” All the way through the 1880s, “due process” had always been understood in England and the U.S. to mean the right to a fair trial and other legal procedures that guaranteed a citizen would not be deprived of liberty illicitly. It did not mean that laws could not infringe on a person’s liberties—all of them certainly do—but this would have to be done by fair legal procedures, not arbitrary rule. The Due Process clause was not a basis for the federal courts to judge the reasonableness of state legislation, but only to see that the state laws were fairly applied to all citizens.

In the 1890s, however, the Supreme Court began to issue rulings that states had violated due process by imposing unreasonable regulations on businesses. Now the Court was effectively reviewing the content or substance of state legislation on the grounds that due process required legislation to meet a standard of reasonableness. This effectively allowed the courts to become arbiters of economic and social policy in whichever cases they saw fit to intervene.

By the 1930s, the sword of substantive due process had passed from economic conservatives to New Deal liberals. Now the doctrine was wielded in order to satisfy the social policy predilections of the left, emphasizing an expansion of civil liberties. Justices now reasoned that the “liberty” that must not be denied includes all civil liberties, not merely freedom from incarceration, as the Due Process clause had been historically understood. This gave the courts the broad authority to determine whether state legislation respected civil rights.

On its face, there is an illogic to this jurisprudence, as it implies that states are not to deny certain liberties even with due process of law, which is contrary to the plain meaning of the Fourteenth Amendment, assuming that its phrases are not superfluous. If personal liberties are protected regardless of whether there is due process, the phrase ‘without due process of law’ would be superfluous. To avoid this absurdity, jurists must reason that “due process” includes not just procedures, but also “substantive due process,” which entails that liberties will actually be protected. For if a legal process denies a citizen his fundamental rights, it would be a travesty to call it “due process” no matter how proper the proceedings. The courts were careful to limit the concept of “substantive due process” only to “fundamental rights” essential to the concept of liberty. This still has the effect of saying the state cannot deny citizens their fundamental liberty, period, making the words “without due process” superfluous. Substantive due process is ahistorical, linguistically absurd, and contradictory of basic rules of legal interpretation (e.g., the assumption that phrases are not superfluous). It remained popular because it is a noble ethical principle that perhaps should have been in the Constitution, but it is not.

Substantive due process opens a Pandora’s box that gives federal courts the power to decide whether a law is just, as opposed to whether it is constitutional. It is very similar in some respects to natural law jurisprudence, which requires judges to become moral philosophers and decide whether the law is compatible with the natural rights of man. It is true that the Ninth Amendment, which speaks of rights reserved to the people, might be interpreted to allow for a sort of natural law jurisprudence, but even liberal judges have been loath to invoke the Ninth Amendment, since this could give judges practically unlimited power to create rights. The Ninth Amendment is not an invitation for federal judges to declare new rights, but rather it intends to circumscribe the powers of the federal government, preventing it from intervening in domains not delineated in other parts of the constitution, such as the domestic sphere. States alone may regulate marriage, and federal courts have no say on this matter, save to determine that marriage statutes contain nothing overtly unconstitutional (e.g., distinction on the basis of race) and that they are administered with (procedural) due process. Substantive due process, by contrast, allows federal courts to evaluate the substance of marriage-related statutes, effectively creating federal jurisdiction over the domestic sphere. The same is true of other domains where substantive due process is applied, and in fact this principle was used to repeatedly justify President Roosevelt’s appropriation of state powers by federal agencies. Substantive due process undermines federalism.

The Equal Protection clause of the Fourteenth Amendment has no qualification such as “without due process.” Courts nonetheless recognized that a state may deny equal protection under the law if a “compelling state interest” is served, just as it may restrict other rights (freedom of the press, of speech, etc.) for similar reason. This follows the traditional juridical principle that the rights enumerated in the Constitution are not intended to be absolute. Since no restriction on equal protection appears in the text of the Fourteenth Amendment, the courts set a high standard for limiting this right.

From the above, it should be clear why it is inappropriate to apply the “compelling state interest” test to the Due Process clause. Unlike the Equal Protection clause, the Due Process clause already contains an explicit test: “without due process.” The “compelling state interest” test is more restrictive of state power than the text of the Due Process clause, whereas it is less restrictive than the text of the Equal Protection clause, which makes no explicit exception. Applying the “compelling state interest” test to the Due Process clause divorces the test from its juridical origin in Equal Protection cases, where it was applied to acknowledge states had somewhat broader power to restrict rights than what is declared in the amendment’s text, owing to the non-absolute nature of enumerated constitutional rights.

This misappropriation of the “compelling state interest” test is practically an inevitable consequence of substantive due process jurisprudence, and further evidence that this jurisprudence is misguided. Once it is conceded that the Fourteenth Amendment guarantees the right to liberty as broadly as it guarantees equal protection, the “without due process” qualification notwithstanding, then it is only logical that both the Due Process clause and the Equal Protection clause should have the same legal test. In fact, it is surprising that there was a decades-long delay between the rise of substantive due process jurisprudence and the explicit application of the “compelling state interest” test to the Due Process clause. Perhaps the hesitance resulted from the fact that overtly applying the “compelling state interest” test to Due Process cases would have made it obvious that substantive due process openly contradicted previous jurisprudence, killing the new theory’s credibility in its infancy.

9. Application of the Court’s Jurisprudence to the Texas Statutes

Even if we accept the dubious juridical principles of “substantive due process” and applying the “compelling state interest” criterion to due process cases, it is by no means guaranteed that the Texas abortion statutes ought to be overturned. It is necessary to weigh the interests of the state in regulating abortion against the mother’s limited right to privacy.

The District Court had found that although there were compelling state interests for regulating abortion, such as the health of the mother and the protection of prenatal life, the Texas statutes had a scope much broader than these interests, criminalizing all abortion.

The state argued that the fetus is a “person” according to the Fourteenth Amendment, as proven by embryology, though not established by any legal precedent. The plaintiffs conceded that their case would collapse if it were admitted that the fetus is a person.

There is no constitutional definition of “person,” Blackmun observes, and most constitutional uses of the term are restricted to post-natal life, such as “persons born or naturalized,” while there are no explicit applications of the term to prenatal life. This fact, combined with the legality of some types of abortion throughout the nineteenth century, is evidence that the drafters of the Fourteenth Amendment did not intend to extend the legal rights of citizens to prenatal life.

Constitutional intent notwithstanding, the state argued that, as a matter of physical fact, life begins at conception, so the woman’s right to privacy cannot be considered in isolation from the fetus’ right to life. Without ruling on when life begins, the Court might at least grant the state some discretion in regulating prenatal life, since it is at least reasonable to believe that the fetus is a human life.

Blackmun is sensitive to the diversity of opinion on when life begins, but he reveals his bias by misrepresenting the views of two groups in particular: the Jews and Roman Catholics. He erroneously says that it was the “predominant” view of the Jewish faith that life does not begin until live birth. While it is true that Jewish tradition held that the “spirit” was received at birth, it should be remembered that the word for “spirit” and “breath” were one and the same, and not always conceptually distinguished. Even without “spirit,” an organism could still have “soul,” or “blood,” which was considered the substance of animal life. Moreover, orthodox Judaism expressly condemned abortion as a grievous offense against life, characterizing it as a form of homicide. It is extremely disingenuous for Blackmun to invoke Judaism as opposing the protection of prenatal life.

Blackmun misrepresents Catholic opinion even worse, claiming that Aristotelian “mediate animation” was “official Roman Catholic dogma,” when in fact it was only a theological opinion, predicated on faulty embryology. With the advent of modern embryology in the nineteenth century, application of the same Thomistic principles to the new facts made it clear that the soul is received at conception, since early embryonic development is propelled by the embryo itself, not the active force of the father’s seed, as was previously thought. At any rate, abortion in any stage of development was always considered a grave crime in Catholic and Orthodox Christianity, as the ancient canons attest, and Thomas Aquinas, who believed in mediate animation, nonetheless held that contraception was a sin second only to homicide, “for by it the generation of human nature is impeded.”[13] It is extremely inaccurate, even dishonest, to represent medieval Catholicism as being in any way tolerant of abortion, though this canard still finds it way into “pro-choice” arguments, especially by liberal Catholics. Blackmun is clearly stacking the deck in favor of his preferred outcome.

More pertinently, Blackmun observes that in legal areas other than abortion, there has been little or no attempt to define the rights or status of the unborn. Even those laws which allow parents to make a wrongful death claim for prenatal injuries attempt to redress the injury done to the parents, rather than the child, evidencing a view that the fetus is at best a potential life. Any legal recognition of fetuses as persons has been imperfect, and never entailed equality of status with those who are born.

The Court found that Texas cannot infringe a woman’s right to privacy solely on the basis of one particular theory of when life begins. The legitimate state interests in the potentiality of human life and of the woman’s health only become “compelling” at certain stages of embryonic development. Interest in the woman’s health does not become a “compelling” reason to regulate abortion until the second trimester, since first-trimester abortions are no more dangerous to the mother’s life than giving live birth. Curiously, the Court neglects to consider whether non-lethal health complications caused by abortion might constitute a compelling state interest.

The Court was not content to define a legal principle, but actually went to the length of making a medical judgment(!) of when abortions are safe enough to not require state regulation. Reasonable people may disagree about which abortion procedures are safe to the mother’s physical health, but such judgments are ordinarily made by doctors and those state institutions (advised by doctors) that define standards of safe medical practice. It was irresponsible, to say the least, for the Court to forbid states from regulating first-trimester abortions, thereby immunizing these operations from legal standards of safety and risk assessment. The Court allowed the state to regulate the qualifications and licensing of abortionists and their facilities only for abortions after the first trimester, though only physicians licensed by the state may perform any abortion. Without state regulation, there is no guarantee that abortionists will not use clumsy or unsanitary methods that create health risks to the mother. This was an extremely imprudent judgment, even within the context of the Court’s “compelling state interest” standard. It would be one thing to say the state cannot prohibit first trimester abortions, but to forbid the state from regulating them falls beyond the pale of sound medicine and sound law.

The Court ruled that when the fetus becomes “viable” or capable of life outside the womb, there is a compelling state interest in protecting potential life. The “viability” standard admits some flexibility, though it has been generally understood to apply only to third-trimester pregnancies. The state may regulate and even prohibit abortions at this stage of development, though even here the Court refers to the fetus only as potential life, and thus requires exceptions for the life and health of the mother. The “health” of the mother would be interpreted rather broadly in the companion case Doe v. Bolton.

The viability standard, like the first-trimester standard, is an arbitrary embryological judgment by the Court. Despite denying Texas the right to legislate on the basis of a particular theory of life, the Court has effectively put forward its own theory of life, by ruling that the right to life begins at birth, and the right of “potential” life may only be protected after viability. The question of when life begins is practically unavoidable, since one of the questions the Court must decide is whether there is a prenatal right to life that might circumscribe a woman’s right to privacy. Yet the Court only found itself in this position by applying substantive due process jurisprudence and the “compelling state interest” test, falsely supposing that the state may limit the right to privacy only if this high standard is met, when in fact, states regularly limit the rights of liberty, privacy, and property without reference to such a standard.

Admitting that fetuses are not “persons” according to the intent of the Fourteenth Amendment, states are not obligated to criminalize abortion, or at least not to treat it as homicide. However, there is nothing in the Fourteenth Amendment or anywhere else in the Constitution preventing states from exercising the option of regulating or prohibiting abortion. These laws may not always be wise and just, but laws do not have to be wise or just in order to be constitutional. State legislatures draft laws in accordance with the will of their constituents, who collectively agree to limit their personal freedoms in accordance with some perceived common good. Often the public perception of the common good misses the mark, but it is not the role of the courts to make that philosophic determination.

Still, abortion statutes, like all laws, must respect a woman’s civil rights of liberty and privacy. Justice Rehnquist argued in his dissent that this case is not an issue of “privacy” in the ordinary sense of the term, since an abortion is not a private transaction, but a medical operation, and as such is subject to state regulation. Much less does it have any relation to the Fourth Amendment right against unlawful search and seizure, from which the “right to privacy” is putatively derived. As stated in Katz v. United States, 389 U.S. 347 (1967), there is no general constitutional right to privacy, in the sense of a “right to be let alone by other people.” Such a right, if it exists, is left to the states to regulate.

Notwithstanding pro-choice rhetoric about keeping government out of women’s bodies, in fact the prohibition of abortion involves no tampering with a woman’s body, whereas an abortion is a highly invasive procedure. Thus it is difficult to see how criminalizing abortion intrudes on a person’s privacy in either the ordinary or legal sense of the term. Denial of abortion does affect other private matters, such as whether one will have children, and all the familial, ethical, and personal economic ramifications of this decision. Still, these considerations lead to the likelihood that this is actually an issue of a woman’s Fourteenth Amendment right to liberty, rather than privacy. This right, like privacy, is not absolute, and may be circumscribed in accordance with the Due Process clause.

Justice Rehnquist pointed out that Due Process cases had never been judged according to the “compelling state interest” standard of Roe, but rather states were allowed to enact social and economic legislation limiting personal liberty (as all such legislation must) as long as it has a rational relation to a valid state objective. Previous federal cases gave states considerable benefit of the doubt, only striking down laws that egregiously violated basic rights without any rational justification. Rehnquist believed that statutes prohibiting abortions that endangered the life of the mother failed this standard, but there was no way to strike down all first-trimester abortion laws by the rational basis standard.

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10. Errors of the Verdict

The principal errors of law and reasoning in the verdict are as follows:

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11. Effect of the Verdict

Counterintuitively, the Court found the least offensive of the Texas abortion statutes, Article 1196, unconstitutional: “Nothing in this chapter applies to an abortion procured or attempted by medical advice for the purpose of saving the life of the mother.” This was ruled unconstitutional because it did not account for the stage of pregnancy nor for the mother’s health. Then the Court drew the bizarre conclusion that all Texas abortion statutes must fall, since without Article 1196, there would be no exception for medical emergencies! This is plainly absurd: it was the Court that chose to strike down the medical exception in Article 1196, when a more rational action would have been to limit the applicability of the statutes which proscribe abortions. The Court’s decision to first strike Article 1196 results in the sophistical conclusion that all the abortion statutes are unconstitutional. This includes Article 1194: “If the death of the mother is occasioned by an abortion so produced or by an attempt to effect the same it is murder.” Guided by the standard of interest in the mother’s health, there would be no reason to strike this article down. The Court clearly went out of its way to strike down in toto legislation which at worst needed only to be limited in scope.

As Justice Rehnquist and nearly every conservative legal commentator has noted, the Court used the Fourteenth Amendment to circumscribe state powers in a way contrary to the intent of the drafters of the amendment, seeing that many criminal abortion statutes now deemed unconstitutional were contemporary with the amendment’s ratification. 100 years of jurisprudence were ignored in order to reach this verdict, which, as we have seen, contains additional internal contradictions. It is the height of hypocrisy and intellectual dishonesty to demand respect of Roe solely as established precedent without regard to the strength of its argument, when this decision itself displayed breathtaking contempt for precedent.

The companion case, Doe v. Bolton, would be an even more extravagant decision, expanding the definition of “health” of the mother to include psychological well-being, which effectively means the caprice and whim of the mother have greater importance than the potential life of even a viable fetus. The combination of the two cases effectively mandated the legalization of abortion on demand at any stage of pregnancy, despite the attempt of Roe’s majority to posture as a compromise position, not recognizing any absolute right to an abortion. It is important to emphasize that these decisions did not merely legalize abortion, but mandated its legalization in every state. After much hand-wringing about the complexity and ambiguity of the abortion question, the Court imposed a one-size-fits-all standard for all time on society. Legislatures and their constituents were disenfranchised of their right to come up with their own unique solutions to these difficult and perhaps unanswerable questions, to which the Court pretended to give a definitive answer.

Although the ruling in Roe was a terrible argument, introducing bad jurisprudence and irrelevant legal standards, and then misapplying these principles to the case, it is an established precedent. Even conservative jurists acknowledge that it is not enough for a ruling to be wrong in order to be overturned, but it must somehow be unworkable or so flagrantly unjust that it would be more damaging to the Court’s credibility to uphold the precedent than to overturn it.

Later abortion rulings were conflicting and confusing, depending more on the politics of the justices than on any legal principle. In Planned Parenthood v. Casey (1992), a split Supreme Court arbitrarily adopted an “undue burden” standard for regulating abortion, in lieu of the trimester system of Roe. Casey recognized that Roe contradicted its own acknowledgement of a state’s legitimate interest in protecting prenatal life, by denying states the right to regulate abortion prior to viability on the basis of anything other than the woman’s health. Casey allowed states to regulate abortion in ways that informed the woman’s decision without denying her the right to make the final decision, nor imposing an “undue burden” on her ability to procure an abortion, by placing a “substantial obstacle” to this end. The state could pass measures designed to persuade her to choose childbirth. The state could also impose health and safety regulations on abortion, like any other medical procedure.

The majority interpreted this “undue burden” standard broadly, so that merely notifying the spouse was construed to somehow be an “undue burden” on a woman seeking an abortion. The dissenters suggested that the correct approach would be to regard the woman’s liberty as subject to regulation when rationally related to a legitimate state interest, giving the state the benefit of the doubt as in most Due Process cases. The Casey majority would exalt abortion to a fundamental right, contrary to all legal, political, and social history. Thus it has its own peculiar jurisprudence, and Supreme Court abortion decisions effectively constitute a complex abortion code to be imposed on the states.

As subsequent history has proven, the Court did not settle the abortion issue, but nationalized it, creating militant opposition groups with national reach. The Court, by legislating from the bench one time too many, itself became an object of competing political ideologies. Instead of debating abortion in state legislatures, the battle is waged through judicial appointments, and as Roe cannot stand on the basis of its weak arguments alone, the abortion issue will be held hostage by the courts until the pre-Warren understanding of the role of the judiciary holds sway once again.

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See also: Brown v. Board of Ed. and Originalism | Marbury v. Madison

Notes

[1] Liberal critics of Roe from a legal standpoint include Yale law professor John Hart Ely and Harvard law professor Laurence Tribe, as well Alan Dershowitz, Cass Sunstein and Kermit Roosevelt.

[2] In 1967, abortion was a felony in forty-nine states, with exceptions to save the life of the mother (“therapeutic abortion”). Seven states additionally allowed exceptions for the prevention of permanent bodily injury or damage to the mother’s health. By 1973, fourteen states had added provisions allowing abortion when childbirth endangered the physical or mental health of the mother, or there was a high likelihood of abnormality. Four states (Alaska, Hawaii, New York, Washington) de-criminalized abortion during early pregnancy altogether by 1970.

[3] Ruth Bader Ginsberg made a similar point: “The political process was moving in the early 1970s, not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.” Ginsburg, Ruth. “Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade,” 63 North Carolina Law Review 375 (1985).

[4] While Doe nominally acknowledged that Roe did not establish an absolute right to abortion, it granted doctors full discretion to determine whether an abortion would adversely affect the mental health of the mother. Here “health” was loosely defined to include the mother’s social or economic difficulties in raising a child. By forcing such a novel interpretation of the Georgia statutes, the Court made regulation of abortion impracticable, as any licensed physician could justifiably pronounce any abortion to be necessary to the mother’s “health” at his discretion, without review by a state medical commission. Naturally, abortion doctors would have no difficulty coming up with a health criterion under Doe’s broad standard, making abortion on demand effectively immune to regulation.

[5] As of 1973, forty-six out of fifty states did not recognize this supposedly fundamental constitutional right, though many allowed abortion under various circumstances (see Note 2) in response to changing social attitudes. By comparison, only thirteen states (eleven of which had been coercively repatriated after the Civil War) were guilty of violating civil rights through racial segregation in the 1960s. If abortion were really a fundamental right, it is unprecedented that the vast majority of elected state governments should neglect to recognize it. Political discussion about abortion in 1972 revolved on whether it should be legal, not if it was guaranteed by the Constitution. Public opinion from 1972 onward shows strong support for legalizing abortion in limited circumstances: serious health risk, birth defect, rape, yet even long after Roe, more Americans continued to oppose (50%) rather than favor (40%) elective abortions for reasons of low income, not wanting more children, or not wanting to marry the father. (General Social Survey, National Opinion Research Center, Univ. of Chicago) Roe’s broadly construed right to elective abortion was without basis in public opinion.

[6] Spousal and parental consent were struck down in Planned Parenthood v. Danforth 428 U.S. 52 (1976). A 24-hour waiting period was ruled unconstitutional in Akron v. Akron Center for Reproductive Health 462 U.S. 416 (1983), as was a provision requiring fetal remains to be disposed in a “humane and sanitary manner.” States were forbidden from even dissuading women from having an abortion (via a scripted speech) in Thornburgh v. American College of Obstetricians & Gynecologists 476 U.S. 747 (1986).

[7] The Court ruled in Casey that mere spousal notification (not consent) constitutes an “undue burden” on a woman seeking abortion. In Stenberg v. Carhart 530 U.S. 914 (2000), certain restrictions on partial-birth abortion was construed as an “undue burden,” leading Justice Scalia to comment in his dissent that Casey effectively required lawyers to make policy decisions on what they considered “undue.” The more liberal justices, in their private judgments expressed as law, are at odds with two-thirds of the American public, who favor restrictions such as spousal notification, mandatory waiting periods, parental consent for minors, and prohibition of late term abortions. (2003 Gallup poll) Again, it is exceptional that a supposedly fundamental constitutional right fails to be recognized by the majority of the population.

[8] Edelstein himself acknowledged that some of the ancient Greek physicians felt the Oath compelled them not to assist in abortions, while others such as Soranus of Ephesus (1st/2nd cent.) argued that the life of the mother must also be considered, in which case abortion would be necessary. Note that even those defending abortion did so in the context of the Oath’s prescribed ethic of preserving life. Soranus condemned abortion performed for other reasons, such as preserving the woman’s beauty or hiding an act of adultery.

[9] In fact, Muslim doctors were also required to swear the Oath, which was given by the muhtasib. So, for centuries, the Oath was a universal ethical norm throughout Europe, the Middle East and North Africa.

[10] The evidence is too copious to summarize, and the inquisitive reader will be hard pressed to find a positive opinion of abortion in England (or Christian Europe for that matter) prior to the late eighteenth century. [A detailed study of common law abortion cases is found in Side B and appendices of: Philip A. Rafferty, What’s Really Going On with Pro-Roe v. Wade Catholic Politicans?, Tate Publishing, 2011.] The illustrious legal writers Bracton (13th cent.), Coke (16th/17th cent.), and Blackstone (18th cent.) all considered abortion a crime, and there are none who explicitly said the contrary. Moralists and ecclesiastical authors were likewise unanimous in condemning induced miscarriages. A coroner’s inquest found that on December 12, 1503, an unmarried pregnant woman of Basford “drank divers poisoned and dangerous draughts to destroy the child in her womb, of which she immediately died. Thus she feloniously slew and poisoned herself as a suicide and also the child in her womb.…” Abortion was always depicted as irregular and criminal; the revisionist idea that English peasants widely practiced infanticide and abortion is unsupported by the archaeological and historical evidence. [Barbara A. Hanawait, The ties that bound: peasant families in medieval England (New York: Oxford Univ. Press, 1986), pp. 100-102.] Nicholas Culpeper (1616-1654), the founder of English midwifery, instructed his midwives: “give not any of these [remedies that cause menstruation] to any that is with Child, least you turn murderers…” Whenever illicit abortion practices are mentioned in medieval or early modern English texts, it is always to condemn them.

[11] During the medieval period and into the early modern era, abortion cases were generally handled by ecclesiastical courts, as were other domestic matters (and other crimes such as defamation) now governed by the state. After the Reformation, these courts were subordinate to the monarchy. Marriage law, certification of birth, education of children, and other aspects of family governance were regulated through the Church. In the nineteenth century, these functions gradually became appropriated by the state. Lord Ellenborough in particular favored the abridgement of ecclesiastical jurisdiction in favor of the pre-eminence of common law courts.

[12] As noted, the lesser penalty for abortion is also attributable to the difficulty of proving intent to kill. Nonetheless, as noted previously, legal and ethical commentary through the nineteenth century evinced opprobrium toward abortion primarily because it caused the death of an unborn child, which accounts for why it was punished much more severely than ordinary malpractice.

[13] Thomas Aquinas, Summa contra gentiles, 3, 122.


© 2006, 2011-12 Daniel J. Castellano. All rights reserved. http://www.arcaneknowledge.org

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