As I briefly noted earlier, I finally had a chance to read an eleven page influential law review article by the then retired Justice Clark, "Religion, Morality, and Abortion: A Constitutional Appraisal" (1969). It was cited in various lower court rulings decided pre-Roe , by Justice Douglas a few times as well and briefly cited by the majority ruling in Roe. Supreme Court links here. It is unclear to me why it is so hard to find online; it is not even on Lexis. Don't know about Westlaw.
In the first case Douglas cited the article, he did so to underline that abortion is a disputed moral/religious subject matter ("it is, of course, caught up in matters of religion and morality"), so leaving it up to juries to determine if one is required for "health" is the road to arbitrariness. Clark cited the religious debate over the issue, belying the idea that "Christians" cannot have an abortion by definition:
Throughout history religious belief has wielded a vital influence on society's attitude regarding abortion. The religious issues involved are perhaps the most frequently debated aspects of abortion. At the center of the ecclesiastical debate is the concept of 'ensoulment' or 'person-hood,' i.e., the time at which the fetus becomes a human organism. The Reverend Joseph F. Donseel of Fordham University admitted that no one can determine with certainty the exact moment at which 'ensoulment' occurs, but we must deal with the moral problems of aborting a fetus even if it has not taken place. Many Roman Catholics believe that the soul is a gift of God given at conception. This leads to the conclusion that aborting a pregnancy at any time amounts to the taking of a human life, and is therefore against the will of God. Others, including some Catholics, believe that abortion should be legal until the baby is viable, i.e., able to support itself outside the womb. In balancing the evils, the latter conclude that the evil of destroying the fetus is outweighed by the social evils accompanying forced pregnancy and childbirth.
Note the "viability" dividing line. Justice Douglas "would affirm the dismissal of these indictments and leave to the experts the drafting of abortion laws that protect good faith medical practitioners from the treacheries of the present law." He cites Clark's "preference" that courts basically rely on the medical judgment of doctors here. And, Justice Blackmun in effect did so. In one collection of Douglas' communications, Douglas noted at one point while Roe was pending that he favored a line being drawn at the first trimester. The law review article makes clear that Clark does not think conception should be the line drawn. Douglas quoting in Roe's companion case:
To say that life is present at conception is to give recognition to the potential, rather than the actual. The unfertilized egg has life, and if fertilized, it takes on human proportions. But the law deals in reality, not obscurity -- the known, rather than the unknown. When sperm meets egg, life may eventually form, but quite often it does not. The law does not deal in speculation. The phenomenon of life takes time to develop, and, until it is actually present, it cannot be destroyed. Its interruption prior to formation would hardly be homicide, and as we have seen, society does not regard it as such. The rites of Baptism are not performed and death certificates are not required when a miscarriage occurs. No prosecutor has ever returned a murder indictment charging the taking of the life of a fetus. This would not be the case if the fetus constituted human life.
But, Clark discusses how the matter is debated by various experts. Viability as such is not the line he chooses (he notes it is not the line in all jurisdictions; if it is, it is not set in stone) though it was favored by the lower courts that decided the abortion issue pre-Roe. Legislatures would have some discretion to determine "that point between prevention of conception and the viability of the fetus" where regulation or even prohibition is allowed. But, their discretion would be limited. Clark had a firm belief in a right to privacy:
Unless the State has a compelling subordinating interest that outweighs the individual rights of human beings, it may not interfere with a person's marriage, home, children, and day to day living habits. This is one of the fundamental concepts that the Founding Fathers had in mind when they drafted the Constitution.
The article begins with a notice that current law and policy was no longer lagging so much behind actual practice, Kinsey cited to show how the two often did not mesh. Clark is clearly against "hypocrisy" in this area. The realization by doctors and others that reform was required was clear. He cites Holmes to argue that "moral predilections" should not be used to settle legal rules in this area. He also writes appreciatively of the rising concern of the "double standard" in being able to obtain abortions by social status and financial ability. Clark easily could have cited the public clinics at stake in Griswold on this point.
Since the "collective conscience of our society" is key in determining fundamental rights protected by that opinion, these societal developments are of particular importance in constitutional analysis. Likewise, Griswold underlines a degree of liberty in this area, even when human life in some form is at stake. But, case by case developments cannot solve all the questions and fine lines required here. So, he ends his article with a call for legislative action, circling back from the opening quote, citing Nehru:
Thought without action is an abortion; action without thought is folly.
And, as Roe noted, he pointed out a few states have already "led the way." A lot packed into those eleven pages .. and for a law school (Loyola) associated with the Catholic Church to boot! I wish it was open to a wider audience.