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<< Previous: Oh, Come ON | Next: Why the Abortion Deb... >>

On the Matter of Roe vs. Wade
Sunday, 2006 January 22 - 3:09 pm
Part 1 of a two-part article. Today is the 33rd anniversary of the eternally controversial Roe vs. Wade Supreme Court decision. In this part, I'll take a close look at the important elements of that decision.

(NOTE: I recognize that the topic of abortion is highly divisive and inflammatory, so with that in mind, I'm going to say this: if you want to argue about abortion, don't do it here. I'll delete comments if people start a debate. If you want to express your own opinions about the topic, do it in your own blog. Okay? Normally I don't want to stifle discussion, but this topic easily has the potential to turn into a flame war.)

Today is the 33rd anniversary of the Roe vs. Wade Supreme Court decision that, for all intents and purposes, legalized abortion in the United States. In the time since, there has been perhaps no other decision or area of politics that has so divided the country as this one, and opinions on this topic have become a virtual litmus test for federal court candidacy. Just look at the current Supreme Court opening: conservatives screamed for a candidate who might overturn or weaken Roe vs. Wade (like Judge Samuel Alito), whereas liberals are deathly fearful about the same possibility.

Is that a possibility? Will we see Roe vs. Wade overturned?

I'm going to guess that most people have only superficial knowledge of the actual Supreme Court decision, written by Justice Harry Blackmun, so I'll go over the important parts in detail.

The first thing that catches my eye is this quote included by Blackmun, which originally came from an opinion written by the brilliant Oliver Wendell Holmes (in a dissenting opinion in Lochner vs. the State of New York):
[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.

Which means, in a nutshell: the Constitution trumps whatever personal opinions one might have about a topic. When Courts make legal interpretations, they must be based on principles of law, not individual convictions. That concept plays an important role in this decision.

* * *

There are four interesting parts to the decision in Roe vs. Wade. The first is the principle of privacy, an implied civil right embodied in the Constitution. Abortion rights opponents will argue that there is no explicitly-enumerated right to privacy written anywhere in the Constitution, and that's correct; however, you can infer the right to privacy from various other clauses in the Constitution. This was pointed out in an important precedent-setting case for Roe, the case of Griswold vs. the State of Connecticut, which protected the right of married couples to use contraception. (I wonder: how many abortion rights opponents would also like to see Griswold overturned?)

Here are some key quotes from Griswold:
The association of people is not mentioned in the Constitution nor in the Bill of Rights. The right to educate a child in a school of the parents' choice - whether public or private or parochial - is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights.
Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
We deal with a right of privacy older than the Bill of Rights - older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.

So the opinion of Roe vs. Wade establishes that there is a fundamental (but not absolute) right to privacy embodied in the Constitution. Given the amount of precedent behind this, it's doubtful that this portion of the decision will be overturned.

* * *

The second interesting part of Roe vs. Wade is an assessment of the weight of ancient law and common law on current U.S. law. Blackmun points out that laws prohibiting abortion do not come from eternal values or principles. Ancient societies practiced abortion. Abortion was legal in most states, and in U.S. common law. Abortion was legal in England.
It perhaps is not generally appreciated that the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage. Those laws, generally proscribing abortion or its attempt at any time during pregnancy except when necessary to preserve the pregnant woman's life, are not of ancient or even of common-law origin. Instead, they derive from statutory changes effected, for the most part, in the latter half of the 19th century.

Critics of the Roe vs. Wade decision point to this area in particular, claiming that Blackmun was reaching outside of U.S. law to justify legalization of abortion. This is incorrect. Blackmun is simply pointing out that anti-abortion laws are a fairly recent invention in the course of history, and not something that have existed since the beginning of time. He seems to be implying that we cannot justify an anti-abortion law on the assumption that we are upholding some universal long-established principle.

* * *

The third interesting part is the justification of the State's interest in regulating abortion. Blackmun points out three justifications here. First, some have argued that the State has an interest in preventing illicit sexual conduct. This argument is quickly dismissed as too broad. The second is that the State has an interest in protecting the mother's health. Of course, in today's medical world, having a pregnancy is often more dangerous to the mother than having an abortion, so that argument is also dismissed. The third argument is that the State has an interest in protecting the life of the unborn child. Roe vs. Wade upholds this argument, saying that is a legitimate State interest! A lot of folks miss this part. However, the crux of Roe vs. Wade is how to balance the State's interest versus a pregnant woman's Constitutional right to privacy.
[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. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one's body as one pleases bears a close relationship to the right of privacy previously articulated in the Court's decisions. The Court has refused to recognize an unlimited right of this kind in the past.

However, Blackmun notes that in general, courts have construed that abortion is covered as part of a woman's "privacy" interests.
Although the results are divided, most of these courts have agreed that the right of privacy, however based, is broad enough to cover the abortion decision; that the right, nonetheless, is not absolute and is subject to some limitations; and that at some point the state interests as to protection of health, medical standards, and prenatal life, become dominant. We agree with this approach.

* * *

The final interesting part is the assertion that it is not determined when life actually begins, and without a definitive answer on the topic, we cannot base legal matters on this crucial point. Blackmun writes:
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 as to the answer.

And so therefore:
In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake. We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a nonresident who seeks medical consultation and treatment there, and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes "compelling."
With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. 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.

There's the crux of it: the point at which the State's interest in protecting an unborn child outweighs the State's interest in protecting a woman's privacy, is the point at which the fetus becomes viable. Is the fetus a "person" or a "child" before this point? Blackmun argues that for us mortals, this is an unanswerable question, and therefore not a point of law.

* * *

And that's it. Roe vs. Wade did not define when life begins. It did not invent the right to privacy. It did not manufacture a law. It set a legal standard on how to balance competing interests of the State. Can that standard be challenged or redefined?

Probably. It is not an easy thing to overturn Supreme Court precedent. But it wouldn't be necessary for the Court to vacate Roe vs. Wade in its entirety; it would only need to "update" the legal standard. It's not that abortion will be outlawed altogether. But a future activist Supreme Court may decide that the standard in Roe vs. Wade is "inaccurate", and may tip the scale towards protecting the unborn child to some degree.

And that's what liberal organizations are so afraid of, with the looming confirmation of Judge Alito to the Supreme Court. As soon as that confirmation comes, it seems likely that some state legislature will try to push the bounds, perhaps by outlawing abortions beyond the first trimester, and we'll immediately set up a court battle. And if you thought political divisions are bad now, wait until you see what happens then.

In my next article, I'll discuss some of my personal views about abortion. Hopefully I won't piss too many people off.
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Posted by Ken in: commentarypolitics


Comment #1 from Crouching Hamster (Guest)
2006 Jan 22 - 8:38 pm : #
Well done.
However I'm still not worried about this one.
Comment #2 from Crouching Hamster (Guest)
2006 Jan 22 - 9:13 pm : #
P.S. - I think you need to update this with Planned Parenthood v. Casey, which replaced the state's compelling interest standard with Justice O'Connor's "undue burden" standard.

The dissents in that case were harsh, overreaching, and nothing but dicta. And they all knew it.

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