Happy Anniversary! (Roe v. Wade Edition)

In honor of the 42nd anniversary of the abortion rulings, I offer this past post that looks at things from the dissents' p.o.v.  Later dissents were more detailed, but the basic problems continued, including the open-ended nature of the logic of the opinion. The key differential would be the "life" or "personhood" of the embryo/fetus, but that too is rather broad if we apply it to the early months of pregnancy. And, most abortions occur then, while those later tend to be "special cases" in various ways.  

Roe v. Wade and its companion case Doe v. Bolton together took over eighty pages. Then, there were about twenty pages of concurrences, Douglas and Stewart giving a thumbnail sketch of the issues in a helpful way given the breadth of the majority opinions (and summary nature of the core privacy rights discussion), Burger briefly noting the right to choose an abortion is not absolute.

Then, there are the dissents, which amount to about ten pages, pretty thin and not greatly responsive to the opinions themselves though sadly basically of a piece with how things are often handled on that end to this day.  Justice Rehnquist starts by noting it is not clear that "Roe" was early enough in her pregnancy to really get any benefit from the ruling but the opinion made clear (putting aside that it was a class action) that the particular nature of pregnancy made it prudent to decide the case given otherwise the matter never might be decided.  Litigation could always take longer than the short period of pregnancy and anyway there is a good of enough chance for the same issue to arise once again in a woman's life  Rehnquist simply did not respond to this section of the opinion.

Next, he is confused how an abortion involves a matter of "privacy" as if the term has some narrow definition that could not cover such a medical procedure, though in fact the average person would not find it strange at all.  The various opinions explain just what the "right to privacy" means, including a range of personal subjects and decisions that ultimately is left to a person or persons, particularly matters involving one's body or family life.  As Douglas notes, the "right of privacy has no more conspicuous place than in the physician-patient relationship, unless it be in the priest-penitent relationship."  Again, why is this so hard?

Rehnquist next agrees that a "liberty" interest is involved, but without more, this does not require much in way of a governmental interest.  So, if a law didn't have an exception for an abortion to save a woman's life, yes, the law very well would be so arbitrary to violate the Due Process Clause.  But, what about a woman's health?  Justice White strangely separately says that "the Texas statute is not constitutionally infirm because it denies abortions to those who seek to serve only their convenience, rather than to protect their life or health," but in fact the statute does not do that.  It does not have a "health" exception.  We are left wondering how they would rule upon a narrow "as applied" challenge.*

The various opinions underline that an open-ended "liberty" interest is not involved here, but a fundamental right honored by various precedents. Rehnquist might not like the test used in that context, including the compelling state interest rule, but there is nothing novel in applying it outside the Equal Protection Clause area.  Not addressing the fundamental rights at stake, he then notes the long history of abortion regulation, if ones that began some time after the ratification of the Constitution. This shows to him that the states could "legislate with respect to this matter."

The majority doesn't dispute the ability to pass abortion legislation but its long history section underlines the state's interests in the area changed over time.  Again, the short dissent does not actually face this matter head on at all.  The trimester scheme that is criticized as judicial legislation, for instance, is a means to provide clear judicial lines arising from changing state interests throughout the pregnancy.  There can be a debate on how best to deal with such things, but you have to at least address just what is at hand.  The last section of the dissent that would for the stake of argument would only strike down part of the statute does not really explain how to manage it in this case.

Justice White takes a somewhat different approach, particularly given his support of other substantive due process rulings such as Griswold though he too is particularly upset by breadth of the ruling: 

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.

This reflects the belittling of some on just what is at stake here as if any abortion is likely to have "no reason at all" or will not in some serious way be a result of some threat to the life or health (particularly in the broad understanding of that term in a recent ruling**) of the woman.  The sneering tone of the dissent is striking -- the majority "values the convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus." Compare the majority approach:

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.

Such a broad understanding of "health" interests was also expressed in defining the terms of the abortion statute in U.S. v. Vuitch, "psychological as well as physical wellbeing." What woman trying to avoid nine months of pregnancy and the resulting effects would not meet this test?  If one seriously looked at the matter, there is a fundamental right at stake here, a strong compelling interest for the woman to have a choice. How does potential life, life that no justice denied was not a constitutional person or one which past cases would hold overrides the fundamental rights of actual constitutional persons win out?  Particularly given how states still allowed abortions, even Texas as a matter of practice, in a range of cases?

Update: Let me underline this -- no justice has argued there is a "right to life" here for the embryo or fetus based in the Constitution that overrides the right to choose an abortion.  Some of them (Rehnquist is notable for his lack of passion here) show their hand regarding personal beliefs as to abortion, but unlike those that appeal to Dred Scott v. Sandford and the like, no justice has rested on the constitutional rights of persons. This is notable -- as I have noted in the past, the states in these two cases themselves in oral argument in part appealed to such rights.  

In a later case, Justice Stevens called White to task on the point, noting that taking everything into consideration, part of the point of all of Blackmun's verbiage (Douglas covered the point in more summary fashion, as was his wont), it was not sensible to so broadly deny privacy rights at the point of conception. White himself perhaps knew this, leading him to exaggerate and belittle the interests at stake.  The same continues to this day, including those who try to explain how a woman "chooses" to risk pregnancy and how "unfair" it is that the man does not have equal rights in this area.  The skewered view of reality continues.

Others have done a better job dealing with the hard questions at issue here, though personally I find many of them (including John Hart Ely's famous "Crying Wolf" criticism from the left)  somewhat lacking.  But, in a fashion, the talking past each other (even Douglas and Stewart, the former seeing "substantive due process" more as a sort of bad word than anything else, an ugly reminder of Lochner) was there from the beginning. No wonder that the same old themes seem to continue, forty years in.

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* Doe v. Bolton concerned a law that provided more than an exception for the life of the woman, adding a health exception, one involving certain fetal defects and "forcible or statutory rape" (incest implied).  The breadth of these exceptions were somewhat limited, some noting that particularly given the times, even spousal rape very well might not have been covered. 

** The ruling concerned a D.C. law that allowed abortions when necessary for reasons of health, but as the advocate in Roe noted, Texas only allowed it for life -- this made it harder for the physician to know where to draw the line, so contra to White's summary comment on the matter, vagueness was a serious problem.  The lower court here was not alone in finding such vagueness problems, even with health exceptions.