Introduction.
The Supreme Court issued its first abortion opinion on January 22, 1973. That opinion, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) has ushered in a quarter century of criticism by many academic commentators. In so doing, the Supreme Court created a right to abortion (essentially abortion on demand) that was broader than the abortion rights granted by almost any other western nation. It also federalized the abortion issue, an issue that had been left in the custody of the states for nearly two centuries.
Though a fragmented Court itself later backtracked on Roe in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct.2791, 120 L.Ed.2d 674 (1992), it did not overrule all of Roe because, as the O'Connor-Kennedy-Souter plurality candidly stated, it was important to respect precedent. Thus we are left with Roe and the new right that it created, even though a majority of the Justices on the Court today acknowledge that Roe should be accepted simply because it is precedent, not because it is grounded in our written Constitution.
Our Constitution respects and protects privacy in many ways, but the Court normally derives this right to privacy from various clauses in the text, such as the privacy rights that derive from the First and Fourth Amendments. The Court has also been protective of activity that occurs in the home, but abortions, which occur in the hospital or in medical clinics, are not private in that sense.
Indeed, the analysis of Roe specifically does not rely on any interpretation of the text of the Constitution. The Roe Court, in announcing its results, referred to cases protecting various aspects of privacy, such as marital privacy, but then said that because a pregnant woman carries a fetus that will develop into a child, the "situation therefore is inherently different from marital intimacy, bedroom possession of obscene material, or marriage, or procreation, or education, with which [prior cases were concerned]." Instead, the Roe Court announced that it simply "agree[d]" with the proposition that "the right of privacy, however based, is broad enough to cover the abortion decision," although this right is "not absolute"
Then the Court turned the question of whether life begins at some point prior to viability. If life begins prior to viability, then, Roe stated, the state would have an interest in protecting that life (rather than an interest in protecting the potential for life). The Court responded by avoiding the question, noting that reasonable minds differ on this question, and concluding that — "We need not resolve the difficult question of when life begins."
Although Justice Blackmun for the Court specifically refrained from answering that question, he did argue, in support of his conclusion creating a right to abortion, that — "We are not aware that in the taking of any census under this [census] clause, a fetus has ever been counted." Obviously Justice Blackmun has never examined the voting rolls of Chicago, where there have been incidents of dead people voting. If the dead can vote, then it would not be surprising that sometimes those who have not yet been born have had ballots cast. They may have even been counted in a census. I know that I was once counted twice in one census, although I have been born only once. I specifically told the second census taker about the double-count, but he was unconcerned.
Rationale of Roe.
What is the true rationale of Roe? It is often described as a women's rights case. Supporters have argued that a woman should have the right to control her own body. However, Justice Blackmun's majority opinion specifically rejected that contention — which was made both in the briefs and in oral argument. The opinion states quite emphatically:
"In fact, it is not clear to us that the claim asserted by some amici that once 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." 410 U.S. at 154, 93 S.Ct. at 727.
The opinion did more than simply reject this justification; it then cited with approval two earlier decisions, Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905)(vaccination); and Buck v. Bell, 274 U.S. 200, 47 S.Ct. 584, 71 L.Ed. 1000 (1927) (sterilization).
The Precedent on Which Roe Relied. In Jacobson, the Supreme Court had earlier held that the state has a right to impose vaccinations against infectious diseases even on those people who objected for religious reasons. It is astonishing that the Court in Roe would compare childbearing or abortion to mere vaccination. But remember, this is the same Court that ruled, less than 12 months later, that pregnancy is not a sex-related characteristic. I'm not making this up. Read Geduldig v. Aiello, 417 U.S. 484, 94 S.Ct. 2485, 41 L.Ed.2d 256 (1974), which referred to "non-pregnant persons" [417 U.S. at 497 n. 20, 94 S.Ct. at 2492 n. 20], distinguished between them and pregnant persons, and concluded that even though "only woman can become pregnant, it does not follow that every legislative classification concerning pregnancy is a sex-based classification." Id.
Justice Stewart, who joined the majority in Roe, wrote the majority opinion in Geduldig. He was joined by other Justices who joined in Roe: Justice Powell, Justice Blackmun, the author of Roe, and Chief Justice Burger, who also joined in the majority opinion in Roe.
Roe also cited with approval Buck v. Bell, 274 U.S. 200, 47 S.Ct. 584, 71 L.Ed. 1000 (1927). Buck upheld the power of the state to sterilize "mental defectives" if the state finds that such a person "is the probable potential parent of socially inadequate offspring, likewise afflicted, that she may be sexually sterilized without detriment to her general health, and that her welfare and that of society will be promoted by her sterilization." (Emphasis added.) Buck bluntly stated:
"The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes." 274 U.S. at 207, 47 S.Ct. at 585.
The Court then cited, as support for this statement, Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905).
Before Roe, most commentators would have thought that Buck v. Bell was no longer good law, like an old derelict ship not officially decommissioned, but ready to sink. Justice William O. Douglas' decision for the Court in Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942) — in validating an Oklahoma law that required the sterilization of "habitual criminals" — appeared to have rejected Buck. But Roe resurrected this old derelict and actually cited it with approval. If a future Court would seek to approve a compulsory sterilization law, it can cite Roe as authority.
Choice for Doctors. It is popularly understood that Justice Harry Blackmun's majority opinion in Roe stated that the state has no right to regulate abortion prior to the end of approximately the first trimester. That is when the state's interest reaches, in Blackmun's words, "a compelling point." During the second and third trimesters, the state has more power.
But this is not what Blackmun actually held. He wrote the opinion as if it were a doctors' rights case, not a women's rights case. Consider this strange sentence in his opinion:
"[F]or the period of pregnancy prior to this ‘compelling' point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated." 410 U.S. at 163, 93 S.Ct. at 732. (Emphasis added.)
Under Roe and similar abortion decisions that rely on it, the woman does not have the right to choose; she does not have a right to abortion. It is the doctor (whom the Roe opinion assumed to be a man) who has that right. In a small bow to women's rights, Justice Blackmun noted that the doctor should consult with his patient, the woman on whom the abortion is to be performed. And when the patient consults with the doctor, the doctor has a constitutional right to be free of "regulation by the State."
Two years after Roe, Connecticut v. Menillo, 423 U.S. 9, 96 S.Ct. 170, 46 L.Ed.2d 152 (1975) (per curiam) upheld a Connecticut law making it a crime for "any person" to attempt an abortion. The Court ruled that this criminal statute — although it seemed to go far beyond what Roe allowed — was constitutional as applied to an attempted abortion performed by someone other than a licensed physician. The prohibition was constitutional even during the first trimester, the period when the state was thought to have no power to regulate abortion.
In a very brief opinion, the Menillo Court simply stated that "Roe teaches that a State cannot restrict a decision by a woman, with the advice of her physician, to terminate her pregnancy during the first trimester." 423 U.S. at 10-11, 96 S.Ct. at 171 (emphasis added.) Prosecution of a non-physician for performing an abortion, "[e]ven during the first trimester of pregnancy," infringes "upon no realm of personal privacy secured by the Constitution against state interferences." 423 U.S. at 11, 96 S.Ct. at 171. A woman has no right to choose a non-doctor to perform an abortion, even though a non-doctor might be just as safe and even though a woman can choose a non-doctor, such as a midwife, to deliver a full-term baby.
Later cases have confirmed that Roe was primarily drafted to protect doctors, not their patients. Thus, the Court has said, in Colautti v. Franklin, 439 U.S. 379, 99 S.Ct. 2831, 49 L.Ed.2d 586 (1979), that "neither the legislature nor the courts" can define viability objectively, "be it weeks of gestation, or fetal weight, or any other single factor," because the judgment of the doctor must control.
Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976) struck down a section of a law that forbade the use of saline amniocentesis as a method of abortion after the first trimester because the Court ruled that the law was not necessary to protect maternal health. However, the state specifically found that this technique "is deleterious to maternal health," and the lower court findings supported this conclusion. 428 U.S. at 76, 77, 96 S.Ct. at 2844, 2845. The Chief of Obstetrics at Yale University, testified: "physicians should be liable for malpractice if they chose saline over prostaglandin after having been given all the facts on both methods." 392 F. Supp. 1362, 1373 (1975).
Even though the Court majority admitted that other techniques were safer for woman, it simply concluded that saline abortions were "an accepted medical procedure" in the view of doctors [428 U.S. at 77, 96 S.Ct. at 2845] and thus were constitutionally protected from state regulation. Women are the victims of this decision.
Conclusion.
It is commonly said that if males were the ones to get pregnant, there would be no laws limiting abortion. One should look at the facts. The public opinion polls consistently show that more males favor a right to abortion than females. Men often regard abortion rights as a way to avoid responsibility for their actions. If the woman can easily procure an abortion, then the man who causes the pregnancy believes that he has little or no obligations.
Those people who insist that no statute should limit Roe in any way, those who believe that we must follow Roe without change, without dotting another "i" or crossing another "t" — those advocates should read that decision and the others that follow in its wake. The decision is not about protecting women; it is about protecting doctors.