Roe Turns 41

And Also: Whatever the ultimate result, the indictment of the former Virginia governor and his wife reminds that modern anti-corruption laws do have some bite. There have been some notable prosecutions, sometimes of leading individuals. How this plays out, including when weighing the reasonableness of campaign finance laws is up to debate.

Update: That's right President Obama.

RH Reality Check is a place to go besides Rachel Maddow to see various cases where the right to choose an abortion is being threatened these days. One part of the conservative swing in recent years, as RM noted recently, is a big uptick in abortion regulations. A recent analysis of an oral argument about a probably doomed in some part Massachusetts abortion buffer zone counseled us to remember the women going to the clinics, and not just as target opportunities for opponents. Same here.

"Regulations" might be too generous -- the core problem here is that they are not neutral regulations of  medicine, part of the "health" part of the police power, but repeatedly selective "morals" regulations. The purpose is to, as far as they can, selectively target a disfavored act.  This explains the irrationality on some sort of neutral grounds -- the laws are repeatedly NOT neutral, their purpose is to restrict abortion.  This came to mind some months ago when the Catholic law blog Mirror of Justice contained slanted coverage of the Gosnell case. The push for more regulations that would not stop what happened there must be defended in other ways, especially when they can be counterproductive.

While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.

-- Meyer v. Nebraska

The usage of "without a doubt" is striking -- it has a natural law flavor, a "self-evident" truth.  Some "liberty" that is basic to freedom, the (in the words of Charles Fried discussing privacy though he separates abortion since it specially deals with another life) "moral fact that a person belongs to himself, and not others nor to society as a whole," as Justice Stevens (quoted as well in another abortion case) noted.  It is at times noted (not always with full context, such as by those who do so to oppose it as a whole, ignoring she supports its core result) that Justice Ginsburg don't really like Roe, both since she felt it went too fast and because she favors a more gender based approach. As she noted in dissent:

legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.

The TPM article there notes Ginsburg at times voices sentiments that Roe was more about doctors than women. As with questionable judgments as to strategy (use of gender arguments when Griswold provided a more  stronger case at the time?) and events (Greenhouse co-wrote a book questioning the direction of liberation of abortion laws and claims opposition was particularly based on Roe itself), that is unfair. It again leads me to counsel people to read the damn opinion, imperfect as it might be. The opinion focuses on the women -- "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."

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. 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.

Yes, as a medical procedure, abortion also involves doctors. It also has a "public" component. This warrants as well a reminder of the nuances of the words "public" and "private." I see this as well in debates over regulation of businesses. The word "private" is sometimes applied to businesses, which really means they are "privately" own and run as compared to a governmental business.  But, it still serves the public and has some public character. Marriage is another thing that has a mixture of both -- the state gives you a license or you might take your vows in a public place, such as in a church in front of the community. But, it retains special private aspects. And, even there, it isn't absolute -- no spousal rape exception.  Does this make marriage just "public"?

Beyond this, however, the state may interfere whereover the public interests demand it, and in this particular a large discretion is necessarily vested in the legislature to determine, not only what the interests of the public require, but what measures are necessary for the protection of such interests.

This is a quote from  LAWTON v. STEELE, a late 19th Century case cited by Meyer, a case involving the choice to teach children a foreign language in the 1920s.  Lawton is one of various cases of that era that put forth a generalized notion that the police power was somehow limited. There was some "public interest" that the government could regulate though even there they had to go about it in a basically fair way.*  Beyond that, there are also ultimate private matters (religion, marriage etc.) where the government has less power over. This was the ultimate truth of Griswold and Justice Harlan's Poe v. Ullman dissent (honored as authoritative in later opinions) where he specifically notes:

But, to my mind, such a distinction is so insubstantial as to be captious: if the physical curtilage of the home is protected, it is surely as a result of solicitude to protect the privacies of the life within. Certainly the safeguarding of the home does not follow merely from the sanctity of property rights. The home derives its preeminence as the seat of family life. And the integrity of that life is something so fundamental that it has been found to draw to its protection the principles of more than one explicitly granted constitutional right.

Ginsburg is quite correct to note that specifically at issue here are the interests of girls (lest we forget) and women though not only them. This was seen in some fashion from the beginning, and of the four advocates (the state put forth two different men in the two Roe arguments) providing oral arguments in the two cases (Doe v. Bolton is the other), three were women.  But, and this is in part why the issue intrigued me since high school, the case involves much "more than one explicitly granted constitutional right," including the right of gender equality.

This is seen in the area of homosexual equality, expressed just now by a sound 9th Circuit ruling that juror challenges by sexual orientation warrant heightened scrutiny akin to gender (if not as high, at least going by current case law). Lawrence v. Texas, bringing the religious freedom aspects of the freedom at stake up in the process, shows the connection:

The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. “Our obligation is to define the liberty of all, not to mandate our own moral code.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 850 (1992) .

Griswold  could be seen as the protection of the intimacies of married life. The opinions had a broader reach, but this seems to be the core -- the state recognizes the importance of marriage, authorizes and protects it. Given that, the couple has a realm of privacy that the state cannot enter without special cause. This involves sexual choices and determining when to have children. Even there, women are particularly affected, it is she who will become pregnant if contraceptives are not used.  And, there are wider interests as well, including for her health. This decades earlier led to the 2nd Circuit to assume a  federal ban importation of contraceptives did not apply to health. Griswold went the next step.

Roe was a logical next step as well as was a case shortly before that recognized unmarried people also have a liberty interest here. Does not the right to marry also include choices leading up to marriage after all? This provides more evidence that the overall right, liberty and interests here can be seen on various level of generality. It is quite true that the core has special concern for females.  But, it fits in a greater whole.  This is also why the opinion is such a seminal case -- it raises such basic concerns, including involving proper gender roles (assumed by the idea that a certain type of Good Samaritan might be warranted if abortion is banned -- it is a "duty" that is somehow "chosen" even when the odds are great, as when contraceptives fail) and the meaning of life. [And, various other issues.**]

A final word on that. It is sometimes tediously noted that "human life" is involved here as if there is much debate. The debate, putting aside some who will merely talk about "tissue," is the value we put on such life and the proper way to respect it (language is a weighted subject here, including use of pronouns).  The overall understanding is that the life is a developing thing.  As Justice Stevens once noted:

I should think it obvious that the State's interest in the protection of an embryo [yes! often not "fetus"] -- even if that interest is defined as "protecting those who will be citizens," ibid. -- increases progressively and dramatically as the organism's capacity to feel pain, to experience pleasure, to survive, and to react to its surroundings increases day by day. The development of a fetus -- and pregnancy itself -- are not static conditions, and the assertion that the government's interest is static simply ignores this reality.

Catholic doctrine holds that even artificial contraceptives are immoral because it interferes with the proper sex act, separating sex from reproduction.  The choice as to immorality here is a basic truth of Griswold and shows how tying marriage merely to making children the old fashioned way is limited. Among other reasons. Some contraceptives might work after the egg joins with the sperm though if most actually so act is very questionable. This too is not generally seen as enough.  See, e.g., language quoted by Justice Douglas in Doe v. Bolton. At the very least, for certain reasons -- few cannot think of some justifiable reasons to abort, even if they think it a horrible necessity.  Because we devalue the growing life? No. We determine it is growing, not a full person.

This makes it different from you and me, "persons" protected by due process of law.  The choices here are personal, freighted with moral and religious content that particularly affect the girl or women involved. And, as a result of protections involving various constitutional provisions, Roe v. Wade quite rightly secured that choice if allowing various regulations. So should we when legislating as a matter of sound public policy.

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* Recently, I had a tedious debate online when I noted what seemed boilerplate -- businesses can be regulated as long as the rules are reasonable.  I was then asked what "reasonable" means. It is a summary of a range of rules, including constitutional in nature.  This raised a range of questions amounting to the point that the rules are unclear and not fixed, they develop over the years. Right.  So? There are still limits, both judicially enforced and restraints on legislative action.

** I personally see abortion as a basic issue of health care, including as the choice to avoid various burdens on your health that pregnancy brings. In various cases, it is particularly health related, including those truly late term abortions arising from special issues there.

Free speech and related issues also arise here, not just for protestors. Rust v. Sullivan is an example where doctor/patient speech is invaded, an issue back to the first contraceptive cases and late 19th Century bans on such materials. Neutral regulations such as necessary offering of the dangers of any health procedure is appropriate, but slanted rules are not. I can go on, but that just underlines the breadth of issues, constitutional and others that arise in this context.