Thursday, January 20, 2011

Understanding Roe v. Wade and Doe v. Bolton

This Saturday is the 38th anniversary of the Jan. 22, 1973, Roe v. Wade and Doe v. Bolton U.S. Supreme Court decisions, which together overturned the abortion laws of all 50 states and effectively legalized abortion on demand at every stage of pregnancy.

Roe v. Wade was a challenge to a Texas law that prohibited abortion except to save the life of the mother. By a 7-2 margin, the Court ruled that laws prohibiting abortion, such as the Texas law, violate the Due Process Clause of the Fourteenth Amendment, which states: "No State ... shall ... deprive any person of life, liberty, or property, without due process of law." Dividing pregnancy into three three-month periods, or trimesters, Justice Harry Blackmun, writing for the majority, set up the following policy:
(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.
(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.
It appeared, then, that Roe v. Wade would require legalized abortion for any reason through the first two trimesters of pregnancy (second-trimester regulations can only be for the health of the mother, e.g., cleanliness standards for abortion clinics), but would allow states to ban abortion during the final three months. But there was a catch. The Court specifically required a "health" exception for any third-trimester abortion bans, and the breadth of that exception was defined in Roe's companion case, Doe v. Bolton (see below).

The basis for the decision

The Court reached its conclusion in Roe by deciding that the "right of privacy" it had earlier discovered in the Constitution is "broad enough to encompass" a right for a woman to have an abortion. While acknowledging that "[t]he Constitution does not explicitly mention any right of privacy," Justice Blackmun asserted that "at least the roots of that right" could be found in various provisions, including "the penumbras of the Bill of Rights," and particularly in the Fourteenth Amendment.

The Court went on say that the right to abortion is not "absolute." Explained Blackmun, "We ... conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation." It was these other "important state interests"—namely, the woman's health and the life of the unborn—that gave rise to Roe's trimester framework that allowed for regulation of abortion later in pregnancy.

The Court argued that viability is the point at which the state first has a "compelling interest" in protecting the life of the unborn. The viability criterion was decided upon "because the fetus then presumably has the capability of meaningful life outside the mother's womb."

Blackmun's confusion

Though the facts concerning the humanity of the unborn child had been presented to the Court, Justice Blackmun in Roe famously wrote: "We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate."

This claim has garnered tremendous criticism, partly because in the field of medicine, there was (and is) indeed a consensus that the life of a human organism begins at conception. (The philosophical and theological ramifications of that fact are a separate matter, a distinction the Court did not seem to understand.)

Moreover, Blackmun's statement is contradicted by the fact that Roe itself took a position on the question of the moral status of the unborn—namely, it concluded that the unborn cannot merit state concern until it acquires the capability for "meaningful life" at the time of viability.

A poor use of history

In his majority opinion, Justice Blackmun offered a lengthy discussion of the legal and social history of abortion. He did so in an effort to show that until the mid-19th century, abortion was generally accepted and permitted. This would make more plausible the Court's claim that abortion is a liberty encompassed by the Constitution.

But "since 1973 the overwhelming consensus of scholarship has shown that the Court's history, especially its interpretation of common law, is almost entirely mistaken," writes Francis J. Beckwith. Blackmun mostly relied on "history" provided by Cyril Means, an attorney for the National Association for the Repeal of Abortion Laws (NARAL).

Blackmun was wrong about the common law, which, contrary to his claims in Roe, held abortion to be a crime after the point of quickening, which at the time was the first proof that a living human being existed in the womb. He was also wrong about 19th century anti-abortion laws: Blackmun argued that they were intended not to protect the unborn, but to protect women from unsafe abortions (a concern that no longer carried much weight because abortion had become a safer procedure). It is historically clear, however, that the primary purpose of the abortion prohibitions—which were prompted by advancements in our scientific knowledge of life before birth—was to protect the unborn child from unjust killing.

Law professor Joseph W. Dellapenna writes, "[Blackmun] distorted history and ... made the intellectual leap from an erroneous factual conclusion that abortion laws were not enacted to protect the life of the fetus, to a normative conclusion that these laws could not serve such a purpose."

The Court also decided that the unborn is not a "person" within the meaning of the Fourteenth Amendment, which reads, in part, "No State ... shall ... deprive any person of life, liberty, or property, without due process of law." Blackmun conceded, "If this suggestion of personhood [of the unborn] is established, the [case for legal abortion], of course, collapses, for the fetus' right to life would then be guaranteed specifically by the [Fourteenth Amendment]." He claimed, however, that the word "person" in the Fourteenth Amendment is not meant to include the unborn. Commentators such as Dennis J. Horan, J.D., and Thomas J. Balch, J.D., have noted the irony of Blackmun "employing the most imaginative possible construction of the Fourteenth Amendment to find a right of abortion," but then "resort[ing] to the most literalistic possible form of strict construction to avoid finding the unborn to be persons."

Doe v. Bolton

Doe v. Bolton was a challenge to an anti-abortion law in Georgia. The Supreme Court handed down its ruling in Doe on the same day as its Roe v. Wade decision. The Court emphasized, in Roe, "That opinion [Doe] and this one, of course, are to be read together."

Doe is significant primarily because it describes the extent of the health exception that is used in Roe. In Doe, the Court defined "health" to include not just physical health, but also psychological, mental and emotional health. The Court cited age, familial circumstances and anything relevant to the woman's general feeling of well being as reasons that would justify a late-term abortion—and thus override what Roe decided was a legitimate state interest in protecting the unborn after the point of viability.

The Court explained:
[T]he medical judgment [for a late-term abortion] may be exercised in the light of all factors—physical, emotional, psychological, familial, and the woman's age—relevant to the well-being of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment. And it is room that operates for the benefit, not the disadvantage, of the pregnant woman.
On this criteria, virtually any reason a woman gives to have a third-trimester abortion is sufficient. "After viability, the state may 'proscribe' abortion only when the woman considering abortion can find no physician willing to say that her mental health would, for example, be 'taxed by child care' or suffer 'distress ... associated with the unwanted child,'" write Dennis J. Horan and Thomas J. Balch. In effect, if a woman could find an abortionist willing to perform a third-trimester abortion, she could have one.

In a Los Angeles Times analysis, David Savage explained: "Blackmun had said that abortion 'must be left to the medical judgment of the pregnant woman's attending physician.' So long as doctors were willing to perform abortions—and clinics soon opened to do so—the court's ruling said they could not be restricted from doing so, at least through the first six months of pregnancy." During the final trimester, "It soon became clear that if a patient's 'emotional well-being' was reason enough to justify an abortion, then any abortion could be justified."

Roe and Doe together

Thus, Roe v. Wade, together with Doe v. Bolton, had the effect of mandating legalized abortion on demand up until the moment of birth in all 50 states. All state laws against abortion were invalidated. Indeed, in 1983 the U.S. Senate Judiciary Committee concluded that "no significant legal barriers of any kind whatsoever exist today in the United States for a woman to obtain an abortion for any reason during any stage of her pregnancy."