Roe v. Wade II
Prof. Bill Long 11/1/05
An Inauspicious Beginning
Justice Harry Blackmun, who only had joined the Court a few years previously, was assigned to write the majority opinion. He had been counsel for the Mayo Clinic in the past, and he spent much of the summer of 1972 researching the history and medical issues surrounding abortion. He knew the issue was fraught with peril and said so at the outset. But then he quoted Justice Holmes' dissent in Lochner. Holmes had said:
"(The Constitution) is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar, or novel, and even shocking, ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States."
The apparent reason for quoting Holmes was to give the opinion a "Come let us reason together" consensus-building approach. But what ought to be pointed out is that Holmes made this comment in dissent from colleagues who had just done what Blackmun was just about to do (overturn a validly enacted state statute). In my judgment, for all who knew their law, Blackmun had just sounded an uncertain trumpet.
History and Background
After dispensing with several factual and procedural issues (pp. 113-129 of the opinion), he turned to his historical consideration. He reviewed ancient, medieval, common law, English statutory law and American law on the issue. He concluded that "it was not until after the War Between the States that legislation began generally to replace the common law" (139). Most of these initial statutes dealt severely with abortion after "quickening" but were "lenient with it before quickening." But, gradually in the middle and late 19th century, the "quickening" (what we would call today the fetus' viability) distinction disappeared from the statutory law of most States and the degree of the offense and penalties were increased. Only in the recent years (after 1960) had about 1/3 of the states adopted laws patterned after the Model Penal Code which liberalized abortion availability. The result of his historical survey can be boiled down as follows:
"a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today. At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the opportunity to make this choice was present in this country well into the 19th century. Even later, the law continued for some time to treat less punitively an abortion procured in early pregnancy" (141).
Moving Towards Decision
Then, after laboriously reviewing the approach to this divisive issue in the AMA, the American Public Health Association, and the ABA, he turned to possible justifications for the statute. He lists three: (1) the state's possible interest in controlling sexual morality; (2) the danger to the mother of the procedure; (3) the state's interest in preserving fetal life. TX didn't advance #1; and #2, according to Justice Blackmun, had been dealt with by the advance in medical technology. He didn't decide on the legitimacy of (3); indeed, several briefs had argued before the Court that this wasn't a reason advanced by earlier Courts in upholding the statute. Thus, the review of justifications was, by itself, inconclusive.
He then turned to a discussion of the right of privacy and gave the fullest survey of the Court's case law that might implicate that right that had been given to that time (152-153). He then concluded:
"This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy" (153).
The die was cast. Without more adieu this basic statement served to invalidate abortion restrictions in 32 states. Rather than looking immediately to the interests the states had in protecting fetal life, he turned to the detriments that the state might impose on a woman if it prohibited the availability of abortion. This is his language:
"The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation" (153).
Yet, Blackmun and the Court were not willing to capitulate to those who argued that there should be no restrictions on a woman's right to choose. He said:
"As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute" (154).
Further Legal Analysis
At this point your reaction might be, Ok, but where is the legal analysis? Of course we have seen that the decision rests on a right to privacy that was derived from the 14th Amendment. But is that all that can be said? The Court then moves to a "fundamental rights" analysis and says that when a state intrudes into the private areas of life, deemed to be "fundamental rights," they can do so only if they have a "compelling state interest." In addition, the legislative enactment must be "narrowly drawn" to express the legitimate interests at stake.
Let's pause for a second. The entire judicial process can be telescoped into the case at this moment. The basic issue has to do with how one frames the problem. If you want to argue that the basic principle before you is a validly enacted state statute, then the mode of analysis usually is one of "rational basis" or deference to the work product of the legislature. If, however, you take the approach that the Court majority does in this case, you must subject state statutes that implicate "privacy" concerns or fundamental rights to "strict scrutiny." "Strict scrutiny" is another word for not deferring to a legislature. Therefore, either you defer or you don't defer. What goes into that decision? How you characterize the statute. Why do you characterize it in one way rather than the other? Well, now you are getting into the realm of judicial philosophy and judicial self-understanding. I will get back to this in the next (final) essay.
I conclude this essay with the holding in the case. After the Court concludes that a "person" in a constitutional sense does not include the unborn, and after giving more statements about how difficult the issue is, the Court decided that the state's compelling interest for regulation arises approximately at the end of the first trimester of pregnancy. After this point it may regulate abortions (that is why several decisions since 1973 on the subject had to do with regulation, rather than banning, of abortions). But the state's compelling interest in new human life only arises at about the point of viability--the end of the second trimester. Then the state's interests outweigh those of the mother. As the Court says:
"If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother" (164).
And so we have the Roe framework. The concluding essay summarizes Justice Stewart's concurrence and then-Justice Rehnquist's dissent.
Copyright © 2004-2007 William R. Long