Diary

What's the Matter With Roe vs. Wade?

In 1973 in a 7-2 decision, the United States Supreme Court decided the case of Roe vs. Wade.  One of the dissenters, then-Justice William Rehnquist famously and, as has history has proven, accurately stated in his dissent:  “…the Court’s opinion will accomplish the seemingly impossible feat of leaving this area of the law more confused than it found it.”   Since 1973, at least five major Supreme Court cases dealing with abortion have been decided, all while refusing to repudiate or outright overturn Roe vs. Wade, the most important of which was 1992’s Planned Parenthood vs. Casey.

The majority opinion was authored by Justice Harry Blackmun who was so chosen given his alleged expertise in medical matters since he had been resident counsel for the Mayo Clinic for nine years.  This apparently added medical gravitas to the decision.  A student and friend of then Chief Justice Warren Burger, the Roe decision is viewed as the start of a split between him and the Chief Justice despite the fact Burger joined the majority in Roe.

Excluding footnotes and some references to cases, the bulk of the Blackmun decision is about 11,400 words.  A breakdown of that decision reveals the following:

  • approximately 26% of the decision deals with an introduction, the procedural history of the case, and the issue of standing;
  • approximately 42% of the decision deals with the history of abortion through the ages including a survey of its history in the United States;
  • approximately 8% of the decision deals with the issue of when life begins with more history on that subject;
  • approximately 17% of the decision deals with the underlying legal and constitutional rationale for the decision, and;
  • the final 8% explains the trimester approach, or the practical resolution of the issue.

Immediately, from this analysis, one can see the first major glaring problem with the decision.  All but 17% of the decision deals with the task at hand for the Supreme Court- interpretation of the Constitution.  Perhaps Blackmun dedicates so much ink and effort to other items given the more detailed rationales espoused in the concurring opinions, particularly that of Justice William Douglas.  However, it seems strange that a Justice tasked with such a monumental decision dealing with issues that he admittedly states have broad implications would farm out his Constitutional reasoning to concurring opinion writers.

Hence, in terms of Constitutional law, the decision is minimal.  If one is looking for the Cliff Notes on the history of abortion, then one need look no further than Roe vs. Wade.  And perhaps Blackmun knew the shortcomings of his constitutional rationale and hid those shortcomings in about 2,000 words of an 11,400 word decision.  In reality, Roe vs. Wade is one of the best fluff decisions ever decided by the Supreme Court.

The second major flaw with Roe vs. Wade was the trimester framework imposed on states.  While citing, again, the history of the concept of when life begins, Blackmun takes us through a survey of the views of the Greek Stoics, Judaism, Catholicism and Protestantism noting the differences between them.  On the one end of the spectrum were the Stoics who believed life did not begin until birth while at the other was the belief of Catholics that it begins at conception.  Rejecting them all since to date the question remains unanswered, Blackmun- in the language of compelling state interests- establishes the trimester framework as a matter of convenience and practicality totally devoid of legal or Constitutional reasoning.

It took nineteen years for the Court to reject the trimester approach and adopt the undue burden standard in Planned Parenthood vs. Casey.  Today, most challenges to abortion regulations are argued under that standard and the courts are left to decide the parameters of an undue burden.  That decision in 1992 was decided 5-4 and Blackmun, perhaps realizing the obvious shortcomings of the trimester approach that he devised, signed onto Justice O’Connor’s decision.

To accept the Constitutional reasoning of the Court in Roe, one is better served reading the concurring opinion of Justice Douglas.  The “right” to an abortion is rooted in the “right” to privacy which is not specifically mentioned in the Constitution itself.  Instead, one has to read that broad right into the Constitution given a line of previous cases to Roe which Douglas outlines.  The most recent cases previous to Roe were Griswold and Eisenstadt involving contraceptive regulations.  In those cases, the Court discovered a right to privacy not in the text of the Constitution or any amendment, but in the “emanations” and “penumbras” of other enumerated rights.

One of the major drawbacks against a Bill of Rights which were passed by the first Congress was that James Madison and others feared that a listing of specific rights would necessarily lead to an infringement of other rights not listed.  However, not everything is a “right.”  For example, Madison and other Founders would be appalled by the current beliefs that housing, health care, a job and a guaranteed wage are “rights.”  Instead, these rights to which Madison referred had to be so fundamental and ingrained in history that they did not need mentioning, nor needed to be specifically listed.  This is the concept of “ordered liberty” which then leads to the notion of “substantive Due Process.”

Given the role the history of abortion plays in the majority opinion in Roe, perhaps this is why Blackmun dedicates so much time, effort and ink to the subject.  But, if you are going to play the history card, then you leave yourself open to objections, especially as it concerns Constitutional interpretation.  Enter Justice Rehnquist’s dissent.

The application of the Fourteenth Amendment to state laws, including substantive due process with which Rehnquist agrees, was first proposed in its current form in 1866 and ratified and became part of the Constitution in 1868.  Rehnquist states in pertinent part:

The fact that a majority of states…have had restrictions on abortions for at least a century is a strong indication…that the asserted right to an abortion is not ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental…’To reach its result, the Court necessarily has to find within the scope of the Fourteenth Amendment a right that was apparently unknown to the drafters of the Amendment…There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted. The only conclusion possible from this history is that the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.

He further notes that the Texas law struck down in Roe was enacted in 1857 and largely unchanged until 1973 and that 21 of the abortion laws still on the books in 1973 were present when the Fourteenth Amendment was adopted in 1868.  But for the Roe challenge, abortion regulations were not a Constitutional issue.  An unnecessarily broad reading of the term “privacy rights” is the only rationale to support the decision.

Perhaps the worst legacy of Roe vs. Wade is that it removed from the states the ability to regulate abortion first within the trimester approach and later within the undue burden standard approach.  While state laws that violate the Constitution must necessarily fall, the subject of abortion regulations lies on tenuous Constitutional grounds unless one adopts language involving emanations and penumbras.

In essence, the belief and prediction that Roe would leave this area of the law more confused- which Rehnquist cautioned- has come to pass.  There is further evidence that leading up to 1972-1973, many states were updating and liberalizing their abortion laws and regulations.  For example, in 1868, 36 states had strict abortion laws.  In the intervening years, 15 states updated or rescinded those laws through the legislative process.  In 1967, Colorado liberalized their abortion statutes followed in short order by California, Oregon and North Carolina.  In 1970, Hawaii, Washington, Alaska and New York followed suit and Alabama, Mississippi and Massachusetts in 1972.  Hence, in the short period of five years prior to Roe, eleven states had liberalized their abortion laws.  That is not even counting the proposed changes pending in state legislatures put on hold and then enforced upon the states by Roe.

If morals and mores were changing regarding abortion (and a case can be made that they were) thus leading to rescission of abortion laws in some states, relaxation in others and liberalization in still others, Roe vs. Wade threw a monkey wrench into those efforts.  The result is the morass and controversy the subject finds itself in today.

Justice Byron White’s dissent, joined by Rehnquist, is a pro-life affirmation stating the Court thrust upon states a right for pregnant women to terminate a pregnancy, or human life, at a whim of convenience.  Douglas dismisses this notion stating the Court must deal in reality which, to Douglas, means the state has no interest in protecting innocent human life until the age of viability- or approximately, at the time, after the second trimester.

Most importantly advances in science and technology have proven this mode of rationale wrong.  The presence of fingerprints at nine weeks- something to identify a person in many contexts, the presence of a heart beat, the avoidance of painful stimuli at 5 months and, very importantly, ultrasounds and prenatal medical interventions have rendered the basic findings of Roe vs. Wade moot.

As Ronald Reagan once famously stated, the only person not having a say in the abortion debate are the unborn.  But to those who view the unborn as a blob of cells less worthy of protection than the removal of a mole or tooth in a medical office, or who view pregnancy as an inconvenience when so much contraceptive options are readily available, can we expect any better?