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Monday, December 21, 2015

Roe v. Wade

The final Landmark Cases episode concerns a subject that I have long been interested in since even before the days of Webster (1989), which some people in that day or now might remember as one of the shows about a small cute black kid cared for by white people. Like in the case of Miranda, a critic is on board, the author of Abuse of Discretion: The Inside Story of Roe v. Wade,* though any number of people could be chosen here. The other guest is a local gal who has written on various family law matters.  The episode is about Roe v. Wade, but also involves a companion case -- Doe v. Bolton, the first application of its terms. 

What interests me about the matter is that it covers so much ground, ridiculed at one point by Judge Richard Posner as suggesting abortion is the "Wandering Jew of constitutional law." [Ronald Dworkin discusses abortion particularly in a couple of his books, including Freedom's Law, and references this.]  A comment, taken as a criticism, by a justice during Sarah Weddington's (listening to it again at Oyez.com, I think she did  a pretty good job, especially for an under thirty novice)  oral argument that she was resting on many constitutional provisions to me only underlines this.  We are dealing with a lot of stuff, basic "liberties" liable to do that. Justice Scalia and others argue the Constitution "says" nothing about abortion, but it really says a lot of things that apply to the subject. The fact the word "abortion" isn't cited is no less damning than that "school" isn't mentioned is a barrier to Brown v. Board of Education.

A click of one of the topic hyperlinks can take you to various extended analyses of mine on this subject so unlike some of the other cases this is well trodden ground here by now. The specific context (Liberty and Sexuality covers the overall history well) here involved the sexual revolution and the women's movement, even if these things were not always expressly the basis of decisions -- e.g., not allowing women control over their bodies violated basic principles of bodily anatomy based on assumptions that in practice was invidious sex discrimination. Many involved knew this, but it took some time before the courts were as fully on board.  The complexities were seen even then though including the role of liberal churches in Texas and elsewhere in the abortion rights area.  The two lead lawyers involved in Roe also had a religious background.

Roe v. Wade itself as a constitutional matter grew out of Griswold v. Connecticut, which  dealt directly with marital use of contraceptives, but generally with a right to privacy. The principles of the opinions -- the concurrences involving the 9th Amendment and substantive due process in time having much influence here -- soon grew in their reach. Thus, usage of contraceptives by the unmarried was protected. The application to abortion was a logical next step and the extreme nature of the law -- if not quite the practice -- at the time encouraged this. If there was a general right to privacy over important choices about whether or not to have children, e.g., abortion fits in, more so given the burdens on the woman specifically. And, since abortion was allowed in certain cases, the balance would seem to favor the born woman as compared to the unborn entity in question.
We agree with the District Court that the medical judgment may be exercised in the light of all factors --physical, emotional, psychological, familial, and the woman's age -- relevant to the wellbeing of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment. And it is room that operates for the benefit, not the disadvantage, of the pregnant woman.
The Texas law provided a good test case for those who wanted to liberalize laws in this area given its extreme nature. There was only a life exception, which made it more complicated even than the law upheld in U.S. v. Vuitch that had a "health" exception which the Supreme Court interpreted broadly.  The lower court, which rested its substantive rights holding on the 9A, held the law was unconstitutionally vague since doctors could not clearly know when a woman's condition was so dire that it was a threat to "life," but not so serious, so that only "health" was at risk. This was also a concern for other lower courts interrupting abortion regulations including such things as determining when it might be "necessary" or even the more open-ended usage of "health" in the context of the specific statute. And, in Texas, unlike various states (rarely prosecuted but sometimes used to pressure women to help prosecutions), only the person who performed the abortion was penalized. This arguably can be defended as a matter of pragmatic policy though it threw the state advocate during oral argument. 

The woman state advocate (a force of nature herself, a repeat advocate, including in defense of the death penalty law; ironically, her boss was not a big fan of the restrictive law here as a matter of policy) in the companion case, Doe v. Bolton, had an easier time of it because Georgia had a "reform" law that contained various exceptions including for rape and certain fetal abnormalities. (This last matter influenced abortion reform laws in the 1960s and is an exception that in various cases has broad support, but is a tricky matter, especially since it arguably is not directly "health" related.)  Dorothy T. Beasley (a better advocate than the clowns Texas used) could argue the law balanced competing interests though this underlined we did not have two equal "persons" in the balance since Georgia didn't allow newborns the product of rape to be killed and so forth.  This was the sort of "liberal" abortion laws some states had at the time, only four generally allowing abortions in the same fashion as Roe v. Wade ultimately protected. The "go it slow" brigade at times downplay this sort of thing (even one of the four barely was upheld, requiring Gov. Rockefeller's veto) along with how the matter was already politically divisive as spelled out in the book co-written by Linda Greenhouse.
The procedure - and now I'm telling the Court something that's outside the record - as I understand, the procedure when a woman is brought in after a rape, is to try to stop whatever has occurred, immediately, by the proper procedure in the hospital.
Sarah Weddington explained how the interests of the women (it being a class action made it less important no single woman was pregnant at the time of the litigation, though "Roe" herself did not immediately benefit) were not being protected by the state courts. The lower federal court declared women to have the right to choose but for technical reasons did not block the state law directly.  This technical issue does not get much play, but as noted in The Brethren, was an important factor in the Supreme Court first taking the case. This too made this a good vehicle.  The fact, added by the state advocate, they unofficially allowed rape victims early on to have abortions also did not help. And, it wouldn't have helped "Roe," who wasn't raped though she at one point suggested it if it would help. 

But, the overall issue of abortion was going to have to be decided by the Supreme Court sooner than later. The federal government avoided a possible minefield as the case was being decided involving a pregnant servicewoman who was given the choice of getting an abortion or resigning from the military. RBG has noted she was disappointed because it seemed to her such a prime opportunity and her connection of religious liberty (the woman being Catholic didn't want to have an abortion), equality (unlike men, she couldn't use leave to deal with the matter) and privacy (the privacy/equality synergy not an invention of Kennedy in the SSM cases) is an impressive trifecta.  

Meanwhile, around twenty cases, with various decisions, were being decided in the lower federal courts involving more usual abortion cases. We can debate the breadth of Roe v. Wade, but the specific subject matter was ripe for decision. There is also the approach.  RBG has argued equal protection, but sex discrimination cases were just starting to develop there.  Privacy was a settled approach and it made perfect sense to use that. The specific burdens of a woman was referenced in the opinion and by advocates.  And, Planned Parenthood v. Casey later emphasized this was a special matter of private conscience. That later case arguably does a better overall job but it also was aided by working off existing precedent.

As noted, the lower court in Roe v. Wade relied on the Ninth Amendment, used as a supporting reason in Griswold. The Supreme Court used substantive due process -- the "penumbra" approach did not have much staying power with even Justice Douglas' concurring opinion here more in the spirit of his broader "liberty" approach in Poe v. Ullman.  The two approaches are basically the same -- an overall argument that there are fundamental rights not expressly enumerated. Roe v. Wade could have provided more connective tissue here, but a range of cases did protect privacy, in particular involving personal family choices and control of one's own body.  The opinion also goes into the history of abortion and how embryos and fetuses are not constitutional persons.  No justice then or now has argued that abortion cannot be allowed to protect the unborn though this was a major tactic of Texas and to some extend Georgia as well.

The long history section could have been shorter and various people have disputed some of its details. But, it serves an important purpose in discussing the various aspects of the question and how the facts on the ground changed over time.  For instance, a major complaint here -- cited by Rehnquist's dissent -- is that abortion was broadly criminalized. So how could it be a fundamental right to choose one?  Abortion actually was broadly allowed into the 19th Century.  Then, it was regulated for a range of reasons. The medical reasons had much less force by the mid-20th Century leading to reform movements. Abortion was not totally banned even here -- there tended to be a "life" or "health" exception, Texas' law here extreme and in practice not applied as strictly as its text might suggest.

So, there remained some "liberty" to choices in this area including over overall personal health.  Another reason for regulation was, in the words of the opinion: "the product of a Victorian social concern to discourage illicit sexual conduct," but the state did not rely on such grounds. The opinion noted that this interest was not taken seriously (citing lower court opinions), but realistically, this is not quite so. Perhaps, it is not illicit sexual conduct as such, but their were moralistic and value choices at issue here that Griswold and other cases as a matter of constitutional principle held were personal ones to make.  Also, there were assumptions about women's roles at issue here. A telling case here was decided shortly after Roe involving maternity leaves for teachers shows this touched various matters.  A comprehensive picture is often best seen at a distance.

These two factors alone suggest what is happening here -- broad principles are applied to a specific matter where the facts on the ground changed and the underlining justifications at times had an illegitimate cast.  So, the right to have an abortion in some sense was always there, the restrictions justifications changed over time and other restrictions were constitutionally problematic including by applying by then long term principles.  The final concern here is the "life" of the embryo and fetus ("fetus" is usually cited but most abortions occur before there is one).  Some belittle this concern, arguing 19th Century regulations were more concerned with health, professional controls or gender norms etc. This is unfair: changing knowledge did make the quickening line (when movement could be felt) artificial though opposition to abortion (as cited in the opinion) was long held by various philosophical and religious movements.

The lower courts that decided this issue in the years before Roe were somewhat vague on the proper line here, especially since they were dealing with broadly restrictive laws.  The general sentiment from my study of the cases was that abortion should be allowed in the first few months of the pregnancy with the exact lines not yet subject to clarity.  Various reasons were offered here -- some time was warranted to balance the interests here, medical norms (also a major thing relied by Roe v. Wade, authored by a former advocate of the Mayo Clinic and recognizing doctors are the ones doing the abortions; cf. how courts have given discretion to educators) and how there are a range of beliefs on the question early in the pregnancy.  Finally, the Constitution gives rights to "persons" (no justice, e.g., has argued abortion cannot be allowed and exceptions to bans that would not apply to infants are telling)nd viability is the point where a fetus can survive outside the womb. Later, people argued some sort of consciousness or pain test would overlap with viability to some degree.  Again, the proper line would be a balance of changing understandings (e.g., when viability exists) and various constitutional interests.

I personally think the opinion stands up fairly well though appreciate how the concurring opinions of Stewart and Douglas providing more analysis on the particulars of how past cases can lead us to this one.  I think that would have helped the opinion. Doe v. Bolton has some good touches too including how discrimination against out of state residents here is unconstitutional. Also, the problems with singling out abortion for special hospital committees over all other medical procedures. The other issue regards the infamous trimester approach. Logically, this makes sense, especially the viability line (where a fetus can survive outside) but think it probably tried to draw too clean lines too fast.  Originally, the first trimester was going to be the line, but then it was noted various women (particularly the poor and/or minority groups in general) had them later. The best approach there would probably have been to let the exact line develop over time though the ultimate result might have been the same more or less.  As surely would have a good deal of controversy.

Roe v. Wade is a favored target; I'm not sure really how worse it is compared to many other cases. Justice Blackmun was not a judicial craftsman but the criticism constantly is an exercise of overkill that often seems to involve people who have not read the opinions very well.  Also, Blackmun was just starting out on the Court and over time developed more nuanced thoughts about the right to privacy and wrote opinions that did a better job connecting the dots -- see, his Bowers dissent and separate opinion in Planned Parenthood v. Casey.  OTOH, any complaints over the courts micromanaging here will have to answer for constant blatantly slanted laws that single out abortion, not being neutral health laws. And, the opinion leaves open plenty of such regulations, especially if a state treated abortion like other medical procedures.

And, in time, abortion was allowed (too much imho) to be treated differently including in respect to funding or parental involvement.  There is no "abortion on demand" -- it is regulated as a health procedure and those morally against abortion has no duty to perform them unless it is directly necessary for the health of the patient.  I say "directly" since broadly speaking abortion is a health matter and pregnancy is generally a threat to one's health and well being.  And, to add it, forced pregnancy is a form of involuntary servitude though many do not view it in that frame.

The opinion was 7-2 with three Nixon appointees joining in and received broad support regarding the basics, even the Southern Baptist Convention. Opposition, as with other cultural criticisms of the era, occurred before the opinion was decided and occurred generally speaking. If abortion is "murder," it is passing strange if the real problem is that the Supreme Court allowed it too broadly or decided things too fast.  Details are important here, but the wide contours of the ruling hold up here.  The final concern there would be if it was so popular, why not just let legislatures do it.  The problems there include the difficulties of change given the inertia encouraged by the political processes and the reality that there was opposition from certain quarters.  National constitutional rights especially those that are particularly important for disfavored groups (as RBG notes, poor women are particularly at risk here; teens too) cannot merely be left to normal political processes.  Thus, the "Roe problem" is limited to scope.
At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons -- convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc. The common claim before us is that, for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure.
A word on the dissents. John Hart Ely Jr., a progressive critic, wrote in his famous law article that one reason he felt obligated to respond was the thinness of the dissenters here. Rehnquist which would cover a lot more ground than many opponents would support.  First, though this was a class action, he challenged broadly deciding the question as applied to various factual situations.  Second, he confuses "privacy" to mean "secrecy" or such, wondering how a medical procedure in a public hospital room applies.  But, the word as applied in the cases has a broader meaning to cover various private choices such as "who I marry is my own choice, it is private."  Third, he has a restrictive approach to substantive due process generally and given his druthers clearly would overrule Griswold. Finally, as noted, the broad criminal laws on the books are cited without taken everything into consideration to put that in a proper context. 

White did support various substantive due process opinions, including protecting contraceptives, but saw abortion as different.  Why?  Well, a human life was affected though he only spelled this out in some detail in a later opinion that Justice Stevens responded to as seen here.  His sentiments was apparent though: "a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it." Did this apply at fertilization or implantation or at some later point?  Why did not contraceptive bans protect this interest as the Catholic Church and others argue in various respects?  Why can we pick and choose -- to the degree of forced pregnancy -- among greatly differing moral views that if not always (see Ronald Dworkin) at least very often have a clear religious aspect?  Why didn't the analysis of the various opinions here and below provide proper reasoning?  How about if a woman's life or health was at risk or rape?** Unclear, since his dissent here was about two pages long and focused on the breadth of the opinion, including allegedly how it would allow women with no reason but whim to have an abortion.

Rather poor effort though his concern for restraint, including on determining proper medical procedures (as the case was applied to particulars later on), had some merit. Unfortunately, the blunderbuss approach left a lot to be desired.  Justice O'Connor ultimately won the day here by use of a weaker "undue burden" standard that in Planned Parenthood v. Casey probably was applied somewhat more strictly than as suggested by her earlier opinions, but did amount to a somewhat lower level of scrutiny while (if fairly applied) having some bite. The trimester framework also was replaced with a new general standard while the viability line (with exceptions for the life or health of the woman, here defined more strictly than the "health" cited before) so there is now more room for states to express an interest for the life of the unborn. This amounts to more allowance of things like state authorized cant, waiting periods and ultrasound laws though the last has received some pushback.

The basic right to choose is widely accepted with the concern over proper limits.  This too is a big part of the criticism of Roe v. Wade -- some would never accept it, even if it was legislatively applied, but many argued there should be more discretion.  We can debate the details there though I think on the merits they generally come out on the side of pro-choice.  So, a general consensus might set the line at the first trimester, but probably would allow various exceptions.  This would cover nearly all abortions with the remainder some vague and debatable set (at least before viability, those at the margins there usually tragic cases that should be allowed and if examined, again, a majority probably would agree) that should be left to individuals to decide using basic constitutional principles.  The very heat here comes from differences over religious/moral beliefs and roles that are constitutionally generally left to the individuals.

The dissents in the original cases left something to be desired though there was and is some room for debate along the margins. The series itself was appreciated and as a whole makes me want more. There used to be a weekly "America and the Courts" segment on C-SPAN.  Not sure why they stopped it.  Oh, and thanks again for taking a couple of my tweets!


* The Amazon reviews of his book are fill with the usual suspects and the same can be said about the lead reviews that pop up when I did a Google search. A more balanced approach can be seen in this Daily Beast feature.

One general concern is all the factual questions involving abortion, which might have warranted more development in the lower courts. All the same, judicial restraint is rarely consistent.  D.C. v. Heller didn't send back the case to the lower court after deciding a broader constitutional point, determining handguns are protecting and assuming a range of regulations are acceptable.  Also, abortion was allowed for various reasons with a lot of discretion given to doctors, discretion applied in an arguably arbitrary way.  Plus, ultimately, lower courts did hold fact-finding hearings and so forth. And so on -- there are various answers to the book, one written by the Senior Counsel at Americans United for Life.

**  Justice White noted:
I have no occasion, and the District Court had none, to consider the constitutionality of the procedural requirements of the Georgia statute as applied to those pregnancies posing substantial hazards to either life or health.
But, Roe v. Wade surely did, right? The law there banned abortion except for "life," even if he thought the argument against the law was woefully overbroad.  Rehnquist and others (e.g., the federal government in the Casey argument) accepts it would be irrational to ban abortions for "life" though in some countries the laws often do not even protect that interest very well. What if the woman had triplets or her own life was severely at risk? Would that matter? Why "life" and not "health," and why a very narrow definition if that was allowed?  Ireland blocked travel to other countries. Would that be irrational, since "human life" was at stake?  One can go on.

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