Vagueness As An Alternative Route to Abortion Rights?

Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade by David J. Garrow is an impressive tome with a ton of endnotes. An update was written in 1998. 

He later reviewed a collection where law professors wrote alternative opinions. Garrow in 2014 wrote another article on Roe v. Wade. He criticized Blackmun's reliance on clerks though got a lot of pushback as the various links (annoyingly the Greenhouse link is broken since she had special access to the Blackmun papers, writing a book) show.

I re-read the section where he discusses the development of privacy rights and the early years of abortion reform in the mid-20th Century. One particular thing discussed in the overall discussion of Roe v. Wade is how Blackmun's original plan to rely on vagueness in Roe while using a companion case (Doe v. Bolton) for broader constitutional claims was rejected. Garrow assumes this is logical. I continue to find this dubious. 

Vagueness was repeatedly the grounds for striking down abortion laws. The lower court in Roe v. Wade itself partially relied on vagueness:

How likely must death be? Must death be certain if the abortion is not performed? Is it enough that the woman could not undergo birth without an ascertainably higher possibility of death than would normally be the case? What if the woman threatened suicide if the abortion was not performed? How imminent must death be if the abortion is not performed? Is it sufficient if having the child will shorten the life of the woman by a number of years? These questions simply cannot be answered.

Justice White (who dissented from Roe) argued that vagueness did not work. Texas had an exception for abortions necessary to save the life of a woman. The Supreme Court recently (after the district court decided) held a D.C. law allowing abortions "necessary for the preservation of the mother's life or health" was not vague. So, how can a "life" exception be vague? 

U.S. v. Vuitch held that "health" entailed physical and psychological well-being. Also, an abortion could be performed "for mental health reasons whether or not the patient had a previous history of mental defects."  Health was being sound in body or mind. The term "health" was quite open-ended unlike some of the stricter applications in states today.*

Sarah Weddington, the twenty-something advocate in Roe v. Wade, however, pushed back when the argument was made in oral argument. She logically argued that doctors generally make decisions regarding a patient's health. 

On the other hand, limiting their discretion to "life" is much less something they are familiar with. Health and life vaguely run into each other. "That’s not the kind of judgment that a doctor is accustomed or perhaps even able to make."

Now, this might be unconvincing. Still, to me, it seems a rather reasonable argument. Nonetheless, it is not referenced in the discussion. Plus, I do not think it was silly to decide Roe v. Wade on the narrow vagueness grounds. 

Blackmun would not avoid deciding the wider privacy argument. He would use the other case to do so. The case dealt with a "reform" law with exceptions for health, rape, and fetal abnormality. It also had various issues, including a residency requirement. It was more complicated. 

Garrow references a Blackmun clerk as well as other justices' clerks who grant that Roe v. Wade's discussion of privacy is too thin. I think that is reasonable. 

He provides a summary of the cases. Nonetheless, especially with his extended section on the history of abortion [if anything, too long] and discussion of how embryos, etc. are not constitutional persons, more analysis would have been nice. On that front, Planned Parenthood v. Casey did a better job. 

Justice Douglas' concurrence suggests the potential, including various cases about congressional investigations that reference a right to a private life.  Justice Stewart also has a brief concurrence that adds some useful context. 

Garrow in his book review suggested the incoming Roberts Court (at the time) was likely to cut back abortion rights to the first trimester. He was perhaps more optimistic when he wrote his book in the days after Casey. These days he would obviously take a more pessimistic stance.  

I continue to find the many details involved in these cases quite fascinating. So many nuances. The Internet provides access to more materials, including lower court opinions and law review articles. How did we survive without it?! 

Roy Lucas was one of the people discussed in the Garrow book. He clashed with Weddington and others. He wrote a discussion of a birth control case, which was released after he died. 

Not everything he says can be taken at face value. For instance, he criticizes counsel in one case for not providing medical testimony. Garrow's book notes that they had some available. The judges were not interested in hearing it. 

(Roy Lucas had a grudge against the Roe and Doe attorneys largely because he wanted a larger role in the cases. He was a pioneer in an extended constitutional analysis of the right to have an abortion and was involved in many early cases.]

Also, his proposed "right to health care" argument is creative but had little backing in actual case law. Douglas' open-ended Doe v. Bolton concurrence does list caring for health as an aspect of privacy. Nonetheless, like the right to association applying to the patient-physician relationship, it was a more novel argument than the Griswold-based privacy approach.

I have written about these subjects repeatedly on this blog and even before it was created. The extended note below discusses the term "health" in more detail.

As we fight to get back basic rights, it continues to be important to consider the issues. The lack of discretion of doctors and/or their fear potentially open-ended restrictions will lead to civil and criminal consequences has recently had horrible effects on people's lives.  This is not a new issue. 

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* New York in 1918, in a case involving Margaret Sanger, also provided an open-ended definition of "health." Sanger opened a birth control clinic and was prosecuted. She lost her challenge because she was not a physician. Nonetheless, the N.Y. birth control law was held to allow physicians to provide birth control for reasons of health:

This exception in behalf of physicians does not permit, advertisements regarding such matters, nor promiscuous advice to patients irrespective of their condition, but it is broad enough to protect the physician who in good faith gives such help or advice to a married person to cure or prevent disease. “Disease,” by Webster’s International Dictionary, is defined to be “an alteration in the state of the body, or of some of its organs, interrupting or disturbing the performance of the vital functions, and causing or threatening pain and sickness; illness; sickness; disorder.”

[People v. Sanger, cited here.]

Since pregnancy overall is a threat to health -- though some antiabortion people push back on this since it is "natural" -- the open-ended nature of this definition is apparent. 

Some people have abortions because of fetal abnormalities. Nonetheless, even there, physical and mental health is likely a factor. The choice to have an abortion for other reasons, such as economic concerns, is also likely to affect health somehow. And, this is usually not much of a stretch. 

Justice Stewart in Vuitch argued the health exception in the D.C. law gave a physician carte blanche to determine an abortion was necessary for health. Granted, this is not a median position. There is an assumption a health exception has some limits, especially in the third trimester.

Nonetheless, I do believe "health" has an open-ended flavor. In fact, the term "therapeutic" abortion seems somewhat redundant. What abortion is truly non-therapeutic? If you think some of my examples are too broad, how about younger teens and those over 40, who have more likelihood of having problems? Many other examples can be cited.  

This question is especially important as applied to public funding of abortion, which under the Hyde Amendment is strictly limited in many states. The amendment clearly is intended to be a strict limit. So my broad definition of "health" would be a dubious approach, even if it is generally a quite honest application of the term.  

If a state has a "health" exception, as we have seen, there is wide discretion on how to apply it. Texas would interpret it much more narrowly than various other states. In fact, specific doctors and state officials are likely to use different standards. We see this in health care/insurance generally.