Abortion Wars: A Half Century of Struggle, 1950-2000, Rickie Solinger (Editor), has a good chapter on a pre-Roe lawsuit in Connecticut, Abele v. Markle. There are some other fairly interesting chapters though either by current personal tastes or actuality, they didn't interest me as much as this one. Given a debate I had on the Slate fray, the discussion of the moral component of the decision was interesting. The chapter by a disabled rights advocate reminded me too much of this sort of thing. Overall, skimmed it, found this chapter worth the "rental."
The ruling was in the minds of the justices when considering Roe and the overall story is quite informative. It began when a state feminist group was contacted by women trying to find out where to obtain abortions, illegal in the state [not surprising, given a few years before only Supreme Court action made use of contraceptives legal, Griswold v. Connecticut]. They started a lawsuit, with the help of the woman lawyer who did the Connecticut end of the Griswold legislation, setting it up as a wing of their broader feminist activism. They even made it basically an "all women" thing, from lawyers to clients (many lawsuits included male doctors). It was a refreshing reminder of just how the right to choose an abortion fit into a broader context.
The opinion itself also is worthwhile. Actually, rulings. The first time around, after one judge tried to hold up the works, ruled 2-1 against the law. One judge provided a strong opinion with feminist overtones (expansion of the rights of women led to more freedom of choice) while another noted the law focused on the health of the women. The legislature passed a new one that emphasized the life of the unborn was a core purpose. The court again overruled, noting the fundamental right of the women, one that could not be overturned based on an interest that is so disputed in our society.
A general sentiment is that Roe v. Wade was badly written, but those who say that with the sentiment that this means it was also wrongly decided go a step too far. Yes, there is criticism -- sometimes overblown -- but the general consensus (which means there is dissent) is that the underlining principle is right. It's how you get there or in particular how it did. A look at lower court abortion rulings underline this point. It is part of the simplistic coverage often found here that such rulings are rarely discussed. Roe rightly noted:
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 ruling lists them -- around 20 -- and we see that the results were fairly evenly divided though the "anti" rulings tended to be in conservative areas. [One was a brief opinion that held up after Roe since it involved a non-physician; privacy rights not addressed originally.] But, those rulings that held abortion was not protected did not do so because saying there was a right to privacy* [to quote Roe, in areas involving "personal, marital, familial, and sexual privacy"] in this context was an unreasonable statement as a whole. No, they argued that there was a compelling state interest to protect the life of the embryo and fetus, or rather, held the state can so determine. Cf. the dissents here that found a new liberal abortion law in effect unconstitutional given the rights of the unborn.
Justice Clark's abortion article was often cited in these cases, generally in a pro-abortion rights sense. But, one ruling at least cited it to show that abortion legislation was changing, becoming more liberal, and to cite his statement that line drawing should be a legislative function. This is a questionable take since the article also argued that the right to choose an abortion is probably an aspect of the right to privacy. It was protected. The question then would be where to draw the line -- where between fertilization and birth. But, if the ban was complete, that would make the right a nullity.
One dissent to such a ruling noted that the Louisiana law in question clearly treats the unborn as a second class citizen and barely enforces the law, providing a situation where women are threatened for little value. When the opinions (including a few state rulings) address this interest, this is generally the tack taken -- as Stevens noted years later, history showed that this country did not provide a "right to life" to the unborn, allowing abortions in a myriad of cases. So, especially given the divided opinion, often based on religious/moral matters that the right to privacy says rests on the individual, why does things suddenly change the moment after fertilization? Stevens' also alluded to something at times addressed -- how "human being" is not the same as prenatal "human life."
A few of the anti-abortion choice rulings noted that there were alternatives; as the dissent in the NY case alleged:
In view of modern and reliable contraception devices, there is no reason for unwanted conceptions to take place that would cause an exceptional population growth. Secondly, the argument that these unborn children are unwanted is fallacious as there are many, many families presently interested in adoption, who would be more than happy to welcome such an infant into their home. Thirdly, as we reach zero population growth, there is no compelling State interest to support the abortion legislation.
Such fiction. A difficulty in Roe is that it only summarized the right to privacy, did not really do a good job expanding earlier cases into a somewhat new context. YWCA v. Kugler, for instance, perhaps provided the most expanded discussion of the various aspects of the right and how abortion choices fit in. This includes a cite to Terry v. Ohio and its cite of a 1891 ruling that noted: "No right is held more sacred, or is more carefully guarded, by the common law than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law."
Justice Douglas' concurrence did this in miniature as well. In fact, various opinions by that justice -- ironically Griswold was thinner in some ways than various dissents and concurrences on the matter -- provide useful analysis. See, e.g., the pre-Griswold concurrence to GIBSON V. FLORIDA LEGISLATIVE INVESTIGATION COMM., especially the discussion around FN7. There was not enough majority opinion discussion of the basis of the right to privacy, too many opinions in effect resting on precedent. For instance, in 1968 (before an important, if brief, privacy discussion in Stanley v. Georgia), the leading opinion in Powell v. Texas emphasized a public drunkenness law was not one that "attempted to regulate appellant's behavior in the privacy of his own home." This implies a privacy interest, but it is not expanded. Casey is valuable as a partial answer to this. Justice Blackmun's Bowers dissent (perhaps largely written by Pam Karlan) also does a pretty good job.
This underlines the value of examining lower court rulings in the Roe era, including if you are against abortion rights. The dissents in Roe were rather thin and putting aside some disgusted comments in partial birth abortion rulings, later opinions largely avoided addressing the rights of the embryo and fetus as well. Also, generally speaking, a full examination has to put the matter in a broader historical context. Perhaps, it is fitting to end with a quote from a dissent to an anti-abortion rights ruling (Cheaney v. State of Indiana), a dissent that did also speak of the importance of protecting all life*:
These cases serve to identify the nature and perimeters of the right here pleaded on behalf of pregnant women, which right it is contended is infringed by the statute prohibiting abortions. It is obvious to me that the right to privacy and basic liberty is that enormous reservoir of freedom in which each of us daily maneuvers and makes choices, relatively free from governmental intrusion. Much of this freedom we take for granted. We have little reason to contemplate the periphery of this freedom. We have no need to invoke the protection of the Constitution in order to freely make routine daily decisions relating to such matters as eating, sleeping, buying, selling, saving, spending, going, coming, talking, breathing, walking, riding, looking, wearing, cooking, reading, working, playing, bearing and begetting. Surely no one would disagree with the conclusion that the basic liberty of a pregnant woman, that is, the reservoir of freedom in which to make choices, is substantially reduced by her pregnancy. For the sake of brevity, I call upon the reader to fairly contemplate the impact upon a woman and the family interests she represents, of a pregnancy, delivery, and receipt of a physically and legally dependent child. Cases of extreme hardship involving real danger to the women's health, pregnancy by rape, and financial disaster, and many more come readily to mind. Suffice it to say that the stake of the pregnant woman in the abortion decision is great, as great as her life and health, and the health of her family.
A mixture of the right and the effects of not having it.
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* Thus, the judge noted:
I accept the description of the interest of the State in protecting fetal life made by the majority. This interest is great. The stake of the State is the stake that all of us has in the maintenance of a society in which human life is considered the greatest value and in which no man can grow so sick, so useless, or so evil that his life can be extinguished against his will. The State clearly has a legitimate and even compelling interest in legislating in the abortion area, and governing the abortion decision. However, the identification of this State interest and its characterization as compelling cannot serve as a basis of decision here.
This very well might be said to be the current doctrine.