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The first half of this series explained how Roe fit with precedent, which is often not pointed out by its critics. This entry will use Justice White's views to show how selectively opposing one aspect of the rights involved is in fact quite arbitrary.]
Justice White dissented in the abortion cases along with Justice Rehnquist, but only the latter justice was broadly opposed to the principles involved. Justice White's concurrence in
Griswold expressed in emphatic terms his support of privacy rights:
It would be unduly repetitious, and belaboring the obvious, to expound on the impact of this statute on the liberty guaranteed by the Fourteenth Amendment against arbitrary or capricious denials or on the nature of this liberty.
He also basically supported the sentiments of other justices in that case that the alternative could be forced contraception. So why is abortion different? The nature of Justice White's concern as well as the misleading nature of his argument is suggested by this excerpt of his dissent in
Doe v. Bolton:
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.
In
U.S. v. Vuitch, the majority opinion was written by Justice Black, who was no liberal constructionist -- he dissented in
Griswold, for instance. Nonetheless, the majority's stance on "health" was rather broad and held that the statute met: "the general usage and modern understanding of the word 'health,' which includes psychological as well as physical well-being." Some of Justice White's list arguably fits into that definition.
Furthermore, the Texas statute only allowed abortions when the life of the woman was at risk. Therefore, "the heart of the controversy" was surely not that broad. Likewise, the "common claim" was not that women wanted abortions for "no reason at all." Therefore, something more than merely concern for the unborn (a concern involved with some contraceptives used at the time -- IUDs) is suggested.
An equal application of the rules is just not involved in such reasoning (and hyperbole). In various cases, Justice White accepted that privacy concerns were important, so important that various laws had to be declared unconstitutional. A reasonable argument could be made that
Roe was too broadly written, that some more limitations on abortion were justified.
Nonetheless, it simply is not so that the argument made was so ridiculous. In fact, the very fact that no "other surgical procedure" was given such special scrutiny, even when life was involved, suggested [see Douglas'
Vuitch opinion] a certain bias. The same appears when two parent notification provisions
were examined, again abortion was specially treated, even when life and death was potentially involved (e.g., surgery and military service ... and childbirth).
The special concern is currently supplied because an abortion is being considered. Clearly, it is not a matter of health, though since Texas did not even prosecute a self-abortion, the once dangerous nature of the procedure might have been an important factor.
Roe takes special care to show that the unborn was not protected as a constitutional person, and no justice suggested otherwise. Thus, it is constitutional in the eyes of them all to allow abortions.
A law that seriously infringed the right to have an abortion, however, would interfere with various rights that many decisions held as fundamental -- some clearly touching upon enumerated constitutional rights. And, the countervailing reasons amount to moral opinions touching upon "potential life" (the opinion might have said "potential constitutional persons") interfering with such rights. Moral opinions of great dispute among various religious faiths, making selectively picking and choosing among them on such fundamental questions especially troubling.
Justice White's later
expansive discussion of why abortion is different does not solve such concerns:
one must at least recognize, first, that the fetus is an entity that bears in its cells all the genetic information that characterizes a member of the species homo sapiens and distinguishes an individual member of that species from all others, and second, that there is no nonarbitrary line separating a fetus from a child or, indeed, an adult human being. Given that the continued existence and development -- that is to say, the life -- of such an entity are so directly at stake in the woman's decision whether or not to terminate her pregnancy, that decision must be recognized as sui generis, different in kind from the others that the Court has protected under the rubric of personal or family privacy and autonomy. Accordingly, the decisions cited by the Court both in Roe and in its opinion today as precedent for the fundamental nature of the liberty to choose abortion do not, even if all are accepted as valid, dictate the Court's classification.
Justice White is right to suggest that the presence of the unborn requires some special treatment, but each privacy/autonomy case is likely to have its special concerns. For instance, medical contraceptives require special care and more government regulation than the viewing of sexual materials at home, which itself must meet concerns about potential minor viewers. Nonetheless, Justice White's reasoning cannot be used to ban abortions without several difficulties arising. Two major issues are postconception contraceptives and the life/health of the woman.
Push come to shove, it is unclear if Justice White would uphold a law against "morning after pills" or banning abortions necessary for protection of the health of a woman. As noted, Justice White only avoided the dangers of the Texas law by exaggerating the alternative -- debating what "health" means suggests just how nuanced (or extreme) his reasoning turns out to be. Also, would he support forced abortions or penalties for those who do not have them? Why? After all, putting aside his above description, states can still allow abortions. In certain cases, concern for life might quite rationally include not allowing such life to be born.
And, finally,
as suggested by Justice Stevens, the "no nonarbitrary line" argument tries to prove a bit too much unless again he would oppose various types of contraceptives or not take into consideration the moment of the pregnancy when determining if a law is rational given concerns of the health of the woman. Also, to the degree the line is arbitrary, it is essentially a value judgment best left to individual choice not the state. The importance of the choice here only highlights this fact. Justice White wants to pick and choose his support of this principle, but this just does not fly.
It would be hard to target this one right without also harming any number of other rights. Those who are willing to do so, such as Justice Rehnquist and Scalia, can fairly easily be challenged.
* Others want to ignore why the right to choose an abortion cannot be separated from other liberties without a not small amount of arbitrariness going on. And, the concern for the unborn does not save them either, except as to the breadth of the right involved.
This suggests why
Roe v. Wade was a 7-2 opinion and the majority of the lower court opinions agreed with its general principles. And, why -- especially given how forthcoming opinions clarified just what it meant -- they are worthy of our respect as well.
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* Justice Thomas appears to be in this group, but has made it known that he supports a more libertarian regime of uncertain reach. For instance, compare his willness to
join an opinion involving rights to raise one's own children with Justice Scalia's support of the right personally, but not constitutionally. The opinion cites a
dissent, interestingly joined by Chief Justice Rehnquist, which supports a broad reading of the Privileges and Immunities Clause (14A) that would have done the job in
Griswold.
Thus, we are back to the interests of the unborn child, or a debate over the breadth of the right. A right that generally speaking is quite "traditional" as a
citation in an abortion case of a 1839 case (see footnote 33) respecting marital privacy. Concerns that the right to privacy is being read too broadly might arguably do (though few really want to take this argument
too far) the trick, but the emptiness of the pro-choice argument suddenly becomes much less obvious than the emphatic opposition would want us to believe.
