Roe v. Wade at Forty

Next week will mark the 40th anniversary of the Supreme Court’s decision in Roe v. Wade, the landmark decision that struck down numerous state laws against abortion. To celebrate, I went back and read yet again the actual decision, the concurrences and the dissenting opinions in that case. Like all the previous times, I cannot help but notice how largely devoid of constitutional jurisprudence the decision is and the fact that it more resembles a Cliff Notes version of the history of abortion. It struck me that it’s author, Justice Harry Blackmun, was straining real hard to split hairs and play Solomon with his trimester approach which both Justices Byron White and William Rehnquist nicely carve up with reasoned, principled constitutional thought.

This is a little known fact: the case would never have been heard by the Supreme Court but for the fact that in a companion case- the Doe case- the plaintiffs had lost. Roe actually won her case on the merits at the district court level based upon a Ninth Amendment line of reasoning, but Doe had lost her case. When Doe appealed, Roe filed a cross-appeal and joined that case. The Supreme Court, after hearing arguments in the case once, then heard arguments again and upon rehearing, they decided that Roe was a better vehicle for resolving the issues. Because of the cross appeal, we do not know if Wade, the Dallas Prosecutor, would have appealed his loss in the district court.

There are four main arguments against Roe used by constitutional scholars and the pro-life movement. The first is that abortion does not appear anywhere in the Constitution. That much is true, but neither will one find the word “privacy” in it. Yet, no one denies that Americans enjoy a right to privacy to some degree as it is inferred in other areas of the Bill of Rights. In fact, this unenumerated right is the underpinning of the decision in the first place and there was and is a line of cases establishing or, at least, recognizing this unenumerated right. Eight years previous, the Court had decided the Griswold case which laid the philosophical foundation for Roe with respect to the privacy question.

However, where the pro-choice movement goes awry in their interpretation of Roe in that it was never framed as a women’s rights issue. In fact, Blackmun took great pains to frame the discussion from the view not of the woman, but from the view of the doctor. Namely, the primary right expressed here was that of the doctor to practice medicine freely absent a compelling state interest. In a way, he did the pro-life movement a favor in this area because when we frame the argument in this manner, then clearly the state has a compelling interest in medical informed consent and in making sure surgical areas are clean and sterile and the like. While the pro-life movement would like to see the compelling state interest be the protection of unborn life, this line of reasoning is at least the glass half full when it comes to regulating abortions. In fact, they explicitly rejected the fetal right to life argument.

The second argument against Roe was that the Supreme Court misinterpreted the 14th Amendment in this area. This is where and why Blackmun spends so much time discussing the history of abortion. Prior to 1821, there were no laws criminalizing abortion in the United States. Connecticut was the first state to do so. Previous to this, prohibitions were treated more within common law frameworks rather than criminal statutes. In the time between 1821 and 1868, the year the 14th Amendment was ratified, some 36 states had laws regulating or criminalizing abortion in the United States. Obviously, by 1868 abortion laws were being passed and if these laws violated the Constitution, as the Court determined in Roe, then using a 14th Amendment Equal Protection argument as opposed to a 9th Amendment argument, as the district court did, made sense also. Many scholars today argue that using the equal protection line of reasoning actually weakens the Court’s decision in Roe. However, if we use a strictly Ninth Amendment argument and recognize an explicit right to privacy, that right can be taken to some ridiculous extremes. Did the Supreme Court give the pro-life adherents a fighting chance here by recognizing compelling state interests, albeit in a silly manner through the trimester approach? Granted, the trimester approach has been abandoned in favor of the undue burden test. Many argue that by resting the case on Equal Protection rather than a right to privacy but using privacy rights as the underlying principle, but not explicitly, it created the confusion and resulting controversy that exists today in abortion jurisprudence. Since Roe, there have, in fact, been numerous cases before the Supreme Court where they have had to play the referee and decide, issue by issue, what is a compelling state interest and does the regulation create an undue burden? At what point does a regulation create a burden? In reality, all regulations create a burden to some degree. So the better question is at what point does the burden become “undue?” What may seem logical to one person may seem “undue” to another equally qualified and rational person. That is where we are today in the abortion controversy. It is doubtful that if any state passed a law today that completely outlawed abortion within its borders, that law would remain standing before a court. Instead, today’s legislation and regulations are viewed by the pro-choice movement as a series of harassing moves by legislatures against patients and doctors and clinics. This extends to the absolutely fallacious notion that taxpayer money should support abortions under the guise of “reproductive health.”

The third argument against Roe is that the Supreme Court should not wade into divisive social issues like abortion. However, chances are that laws will inevitably butt into some constitutional right somewhere along the line. That is why it is good policy to review any piece of legislation to (1) justify its constitutional premise and (2) determine whether there are any constitutional questions and their ability to withstand court scrutiny. Therefore, the argument that courts should shy away from these divisive issues is misguided. Inevitably, they will have to step in if the challenge is serious enough. One of the examples most often posited is the Court’s decision in Brown v. Board of Education. School desegregation was a major social issue in the 1950s when Brown was decided. Like Roe, if you really read Brown, you will find that it is a good dissertation on social psychology and sociological studies on the effects of segregation on children in the educational context. Only later, after some historical perspective, do they conclude, based on this evidence, that some constitutional right is violated. However, the preceding decision- Plessy vs. Ferguson which established the “separate but equal doctrine”- was actually better constitutional law than Brown. That is not to say that segregated classrooms were better than integrated ones, only that from a legal standpoint, the reasoning was better in Plessy. But, based on this sociological evidence (most of, incidentally, based out of Sweden), the Court felt compelled to wade into the issue. There certainly is ample evidence that when the Court does so, they create the resulting controversy. In effect, many argue, they become the legislature. That is why a case involving gay marriage- the current divisive social issue- will likely create not only confusion going forth, but also controversy. Incidentally and ironically, when Brown was decided, not more than five blocks from the Supreme Court building was an all-black school that academically out-performed most all-white schools in Washington DC.

Which brings me to the fourth argument expressed best by, ironically, Justice Ruth Bader Ginsberg, not exactly your poster conservative Justice. She argued at one time and even recently that Roe v. Wade went too far too fast. By 1973, several states were changing their abortion laws by liberalizing and decriminalizing them. This was done through the legislative process after serious deliberation and thought. Had the Court simply rejected the Roe cross petition in the Doe case (remember- Roe already won at the lower court level), Doe would have likely lost and states would have continued on the slower path they were on. Of course, Wade could have appealed the decision and this line of argument would be moot, or the Court could have rejected his appeal without comment and let the lower court decision stand. That also would have left the issue to the legislative process. Compare this with the gay marriage issue today.

The Supreme Court could in one fell swoop announce that marriage is a fundamental right, that states must have a compelling interest to regulate or place restrictions on that right, and that outright bans on gay marriage are an infringement on that right. That would likely keep the issue controversial. Instead, as Ginsberg argues and I agree, the better solution is to liberalize the marriage laws through the legislative process or through popular referendum. That is, I agree that the legislative or democratic process is the better way to address the issue than through court decrees. In this area, I think I have always argued that since we are talking about a state-issued license here, the states should decide who receives that license provided the restrictions do not discriminate against a protected class of individuals. And no court has ever recognized homosexuals as a “protected class.” Therefore, laws prohibiting gay marriage or state constitutional recognition of marriage between a man and a woman would have to withstand constitutional scrutiny. Obviously, laws that disallow the marriage between a black and a white person run afoul of the Constitution because we ARE talking about a protected class (blacks) here.

All Ginsberg and others are arguing is that most times,the legislative/democratic process is the better avenue to effect these changes rather than through judicial fiat. They would likely have the better effect although there would likely still be opposition from the losing side, but at least the issue was debated in the political arena, not a courtroom.

Lost in all the controversy is this sickening fact: since Roe was decided, there have been over 55 million abortions performed in the United States. While the Left celebrates Roe as some landmark in women’s rights, it is interesting to analyze their statements. Take this one from form NARAL Chairwoman, Kate Michelman, on January 17, 2013 on the Huffington Post: “Roe vs. Wade promised to protect our ability to make decisions about our bodies without unwarranted interference, and recognized the essential importance of equality and freedom in our society.” That statement encapsulates the Left’s erroneous arguments. First, Roe vs. Wade was, as I explained earlier, framed as more of a doctor’s rights decision than a woman’s rights decision. Secondly, usually when we analyze these pro-choice statements from the Left, it is “We,” “Our bodies,” “us women,” “Our rights…,” etc. Does anyone notice that there is a very important fact missing from these statements? Specifically, where are the results of these abortions, the 55 million discarded human lives since 1973?

The Internet is abuzz with articles on the 40th anniversary of Roe vs. Wade with a good portion of them dedicated to recent polling showing that a majority of respondents do not believe Roe should be overturned. That may very well be true; I am not disputing the methodology or the results. But, what if the question was “Do you think Roe vs. Wade should be overturned knowing that the vast majority of abortions performed are for the convenience of the mother (i.e., have nothing to do with harm to maternal health, rape, or incest)?” I do not want to get into the arguments about contraception (if you want it, fine; but not with my tax money). But, given the available options for contraception out there available to women and men, avoiding pregnancy out of convenience or because it may interfere with one’s life plan or career, one would think there should not be this need for abortion which has become for way too many a form of contraception. I fully realize that not all forms of birth control are 100% effective, but 98.9% comes pretty damn close. Thus, all these polls prove nothing. I am sure most Americans polled may be for something like universal, single-payer health insurance (just using this as a hypothetical). I am not so sure they would be for it if they knew the cost and the hit in their wallet to do so.

In fact, the Left often analyzes Roe as some landmark of women’s rights with the caveat that more needs to be done. They often cite, as Michelman does in her article, that women are under-represented in Congress, that they are denied contraceptive services (as if there is a constitutional right to it and therefore an entitlement), or that women remain targets of rape and sexual assault. What disturbs me the most about feminists and the Left is that decry that women are slaves to a male-dominated society, but now they want women to be slaves to their definition of womanhood. And at the center of that definition is blind acceptance of Roe vs. Wade. Trading one form of perceived slavery for another form of slavery denigrates all women. With their attacks on conservative females like Nikki Haley and Kelly Ayotte, for example, they simply reveal their hypocrisy. They don’t care about women’s rights; they care about their definition of women’s rights. To them, if you buck their perceptions, then there is something wrong with you. Personally, I believe that conservatives are more accepting of opposing views here than liberals are accepting or respectful of opposing views in this area.

In the end, the arguments of Justices Byron White and William Rehnquist in their dissents in the Roe decision were certainly prophetic, better constitutionally grounded, and commonsense. It was White who stated that with Roe, the Supreme Court placed a higher value on the convenience of mothers rather than human life itself. By doing so, they acted like a legislature since there is no constitutional warrant to impose on legislatures a set of priorities best left to the democratic process. Since Roe, the undue burden standard is the law of the land and this standard leaves the entire question open to controversy and litigation. There have been opportunities by the Court to overrule Roe, the best one being in 1989’s Webster vs. Reproductive Health Services when Rehnquist passed up that opportunity. Another chance was in Planned Parenthood vs. Casey when Kennedy switched sides and refused to overrule Roe. Despite the Left’s assertion that a Republican would lead an assault on Roe vs. Wade through Supreme Court nominations, if it did not happen under Rehnquist, it isn’t happening under Roberts and he isn’t going anywhere any time soon. For those of us on the Right, instead of attacking Roe vs. Wade, although realizing it is flawed law, the better strategy is to continue to probe those “undue burdens” and legislatively address the issue, and by being advocates for those without a voice in this whole controversy- the unborn.