Roe v. Wade and texas abortion statute and declaratory judgment and injunction

There are few Supreme Court decisions which are so boisterously celebrated or vilified, by proponents or opponents respectively, as Roe v. Wade. Roe has become a litmus test today in American law and politics--and "overturning Roe" will be the central question on legislators' minds as they grill Judge Alito in the coming weeks. Senators will want to know where he "stands" on Roe v. Wade. Of course they cannot ask him that question directly because, as now-Chief Justice Roberts frequently intoned, "the issue may come to the Court in the future." So, Senators will grill Alito on "the right to privacy" and where he stands on that right. It will be an interesting dance to watch.

My interest here is not to look at the political fallout of the case or even the way that judicial nominees might navigate its rocky shoals. Rather, in these three essays I want to discuss: (1) procedural aspects of the case and (2) the holding of the majority/concurrences and the thoughtful dissent of then-Justice Rehnquist. In a nutshell, I think this case is the high-water mark of judicial activism (defined here); thus it is a case overflowing with jurisprudential issues.

Procedural Issues

Three parties brought suit in a Texas US District Court seeking a declaratory judgment that the Texas anti-abortion statute, which had been on the books for more than a century, was invalid under the US Constitution. They also sought an injunction against its enforcement. The three parties were: (1) An unmarried pregnant woman (Roe); (2) a licensed physician (Haliford) who had two state abortion prosecutions pending against him; and (3) a childless married couple, with wife not pregnant, who were afraid to get pregnant because of possible health complications for the mother and inability to abort if these complications developed. The parties were carefully chosen so that they would have the requisite injury in fact to secure standing in the case, since that is often the first hurdle to overcome in a constitutional challenge.

You should note the legal theories under which two of the parties proceeded. First, in the "standard" constitutional attack from the late 1960s, Roe claimed the statute was "overbroad." But then, deriving her theory directly from Griswold, she claimed also that the Texas statute "abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments." You can tell she was "pitching" her argument directly to Justice Douglas and the majority in Griswold. The physician argued for the vagueness of the statute (the obverse of an overbreadth challenge). His point was that the exception in the statute (abortion was legal when it was necessary to save the life of the mother) was a vague standard because he couldn't tell precisely as a doctor when a mother's life was endangered. The three-Judge District Court (under an old statute permitting a panel to hear such a challenge), ruled that the TX statute violated the constitutional right to privacy, that (3) above had no standing in the case (because no "present controversy") and that it must abstain from granting an injunction. It said it couldn't grant the injunction because the TX statute was a state criminal law and it was the rule for federal courts to defer to state courts on issues relating to injunctions in criminal cases. The case was appealed directly to the US Supreme Court, for procedural reasons that aren't clearly explained in the decision.

Thus, the case presents us with a fascinating cornucopia of procedural concerns.

Abortion Statutes and Legal Strategy

Before diving into the arguments in the case, a few words on abortion statutes circa 1970 are appropriate. Though each state's statute was different, it would be generally accurate to say that thirty-two states at the time had statutes forbidding abortions except in cases where the life of the mother was endangered. But, the issue had been a "hot" one in the 1950s and 1960s. Many state Supreme Courts had struck down their own state statutes and the Model Penal Code legislation, which had been adopted by 14 states, would allow abortions in some situations.*

[* Here is the text of the relevant MPC provision. Note how "conservative" it is, from the perspective of an abortion rights advocate. "2) Justifiable Abortion. A licensed physician is justified in terminating a pregnancy if he believes there is substantial risk that continuance of the pregnancy would gravely impair the physical or mental health of the mother or that the child would be born with grave physical or mental defect, or that the pregnancy resulted from rape, incest, or other felonious intercourse. All illicit intercourse with a girl below the age of 16 shall be deemed felonious for purposes of this subsection." (MPC 230.3(2))]

Abortion was then, as it is today, a "hot button" social issue. Yet, note how those who wanted to overturn the TX statute (and others like it) had "laid the groundwork" for Roe. They had, like those who "led up" to Brown with several years of antecedent cases relating to admissions of Blacks to segregated law and professional schools, explored the overturning of abortion statutues first by questioning an admittedly obsolete CT statute forbidding the use of contraceptives under the novel constitutional theory of a "right to privacy." In other words, several years previously they handed to the Supreme Court an issue (from CT) where only the most highly deferential Justice would permit the statute to stand.

America was chock full of statutes inthe 1950s and 1960s which were holdovers from other eras. For example, one Oregon statute, which was only recently overturned, made it a crime to hypnotize a person publicly. Why? Well, early in the 20th century I suppose that traveling carnivals offered to "hypnotize" people, and you can guess what happened on more than one occasion. Someone was hypnotized in a public place, and did something very foolish or even illegal. Thus, statutes were passed to criminalize the act of hypnotizing someone in public.

In addition to old statutes that criminalized conduct that wouldn't be considered very dangerous today were lots of vague laws outlawing things such as the "infamous crime against nature," which I mentioned in an earlier class. These laws were ripe for attack in the "modern" world of the 1960s, and Courts were the ones who often had to develop rationales to bury these laws. Thus, the ridiculous and the vague were two categories of statutes which confronted the courts in this period.

Those who wanted the abortion laws struck down, then, were on a roll from the previous decade--the contraceptive law was struck down and they wanted to use the legal theory developed in that case to attack the abortion laws. The argument, then, would be that the abortion laws were similarly a product of the 19th century era, an era which bequeathed to us all kinds of useless or obsolete statutes. Abortion statutes, plaintiffs argued, were thus obsolete.

Conclusion

It really was quite a bold gambit, for one could plausibly argue that the reason that abortions were illegal was not simply because of Victorian sexual mores or obsolete concerns but because the state actually had an interest in making sure that healthy live births took place. Whereas the argument for "getting the government out of the bedroom" had a real appeal in the Griswold case, one would think that abortion isn't simply a "government out of the bedroom" issue. Yet, as we examine the holding of the case now, we see that the Court rested its opinion squarely on the foundation laid by Griswold.

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