Some more thoughts on the privacy stuff, particularly regarding abortion. Linda Greenhouse co-wrote a good collection that covers the lead-up to Roe v. Wade as well as material related to that case itself. David Garrow also covers the ground in detail in Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade. Oyez.com provides a chance to listen to various oral arguments in Supreme Court cases.
The run-up abortion case that reached the Supreme Court was U.S. v. Vuitch, which dealt with a D.C. law that allowed abortions for "health." The justices split in various ways, but the controlling opinion held that the law was not vague if the term "includes psychological as well as physical wellbeing." This broad understanding of "health" along with abortion generally being safer than childbirth is telling. One justice argued this basically gives physicians carte blanche to decide the matter with their patients. Justice Douglas thought the law was vague but also addressed the substantive liberty claims that later was decided in Roe.
Again, the Supreme Court didn't address the right to privacy issue in Vuitch though it was raised below and talked about during oral argument. The government did touch upon the government interest in the embryo/fetus in a way that addresses the appeal of some to the old rule where abortion was allowed until "quickening." In effect, and we realize this in other situations, that was based on out of date reasoning. As was noted there:
The common law drew the line at quickening because it was generally felt then that a quickening is when the baby became alive. But the -- during the 19th Century the medical profession realized that was really relatively insignificant. It may have had an effect on the mother, she at that point she realized that something was moving inside. But that -- from a medical point of view, from the moment of conception on there was a fairly steady development which continues to --(interrupted for a question). The matter has to be looked upon as a whole. For instance, as brought up in Roe, Texas courts for years (until basically at the last minute) noted that their abortion ban treated the women was the victim. It was seen as a security for her health and well-being, not for the unborn life. A woman could self-abort and it was not a crime (not all states so held). And, how those bans were carried out in various ways makes reliance on that interest of limited value. Still, merely hand-waving the concern as makeweight is something of a weak argument. It does factor in the bans and the current line (viability) particularly accepted this.
He walked it back some (e.g., saying bans affecting homosexuals were not really much harder for the affected people than bans on abortion? sort of stupid), but a lot of mileage was obtained from liberal John Hart Ely's "Crying Wolf" criticism of Roe. One thing he flagged was that the personhood of the embryo/fetus wasn't necessary for a ban -- we after all allow states to ban killing dogs, even in the promotion of political speech. The comparison was stupid for various reasons, including because of the narrow burden (how often does one just have to kill dogs to make a point? cf. this to the alternatives to abortion to protect bodily integrity). Another was that both Texas and Georgia in the abortion cases relied heavily on personhood as a compelling state interest.
It is repeated noted in accounts that Texas didn't put up a good show in the orals in Roe v. Wade, including the first time deciding to open with a joke about getting a word in edgewise with female advocates on the other side both sides in Doe v. Bolton were represented by a woman). Garrow touches upon the advocate for Georgia, Dorothy Beasley, who is somewhat of a forgotten person here. Putting aside her striking voice, she was if anything the most experienced of the bunch -- she also was part of the Furman v. Georgia (death penalty) orals among others. She had a long career, including as state judge. The others pale in comparison.
Beasley provided a strong argument that the unborn were "persons" but that the state was allowed to balance various interests there. The argument wasn't fully addressed, I guess, but her argument was a serious defense of something that rarely is made (as compared to a defense of state discretion over health services or the like) in this context. Texas had a more absolute ban, so when it relied on that as the major argument (perhaps knowing by then other outs were somewhat lost causes), it has something of an easier argument here. Still, such absoluteness made it seem more extreme (so, e.g., in passing, it is suggested there was a policy to allow rape victims to have early abortions), plus the argument itself was less artful.
The ultimate problem is that too much reliance of embryos/fetuses being "persons" leads to a question posed to the Texas advocate -- well, how can states allow abortions then? Beasley's argument requires in effect to admit we are dealing with a somewhat less degree of "personhood" here, one where exceptions of rape, severe fetal defect and serious health problems for the pregnant woman are legitimate reasons to override said "persons" right to life. The state after all did about the same time also defend a death penalty law, but we are talking about quite a different matter, including the number of alleged "persons" allowed to be killed. If so, on the other side, Sarah Weddington gave up a bit too much saying that she would have an extremely difficult case if the unborn was a constitutional person. She started to say earlier that would still require a balancing (think of the attaching a violinist to you for nine months hypo), but when pressed later, in effect said it would lead her to lose her case. Not necessarily.
Moving on, there is a tendency to slam Roe v. Wade as an opinion "everyone" admits is badly written. This is a tell -- like "as you know" or something. Really not. The opinion as a whole works fairly well though we could do without the long section on the history of abortion. I think the opinion could have connected the dots regarding how past precedents lead to this one somewhat better -- see Douglas and Stewart's concurring opinions and a few lower court opinions on the issue -- but a pretty good summary of the cases are given. We then have this:
[The opinion noted that though morality ala the use of contraceptives in past cases was a possible state interest, Texas did not rely on it, so it was not addressed. Of course, along with such things as appropriate female roles etc. such things clearly influence the laws here, repeatedly illicitly. As suggested below, some things simply are not addressed much, but it is something with which both sides can be faulted.]Although the results are divided, most of these courts have agreed that the right of privacy, however based, is broad enough to cover the abortion decision; that the right, nonetheless, is not absolute, and is subject to some limitations; and that, at some point, the state interests as to protection of health, medical standards, and prenatal life, become dominant. We agree with this approach.
True enough. The problem is that the "trimester scheme" set up is questionable, a bit too "legislative" to draw lines so cleanly, including because at "approximately" at the end of the first trimester abortions were safer than childbirth. It is done in other cases (many areas have "tests" or "lines" drawn), so this criticism goes only so far. Still, even there, they tend to be drawn after the law is developed, not in the first case out of the gate. This is a limited criticism though. A health interest is valid when it is not in fact a cover (as it often is) to target abortion specifically. Ideally, courts wouldn't have to manage what would usually be a matter of state health policy, but given the constitutional rights and "trap" laws etc., it was (however ideally done) a duty they were right to take on.
The other concern is the line at viability. The line was drawn since that is when the fetus could survive outside the womb. Again, it was quite relevant to the state advocates if a "person" was at issue, and the opinion provides a good effort to show it is not in a constitutional sense. Viability could make sense there since then someone who could survive as a constitutional person is involved. The opinion also covers how quickening used to be the line, the various philosophical/religious lines drawn and how medical standards now favored viability. Since many justices saw abortion as a largely a medical question as a whole, this was important.
Again, a criticism could be made that the opinion does not do a good enough job in justifying the specific line. Looking at lower court cases, most doesn't do that much to justify a line either -- a standard approach was to say that early development isn't compelling enough to override a woman's choice without much discussion. The courts generally dealt with broad bans ("reform" laws with limited exceptions was by this time the "moderate" approach; many laws were like Texas). A few do note viability would run into the question of live births, which could be a compelling concern. Also, the later in the pregnancy, the more united is the agreement that it is a compelling concern. Those interested can use the list of lower court opinions cited in Roe and search them. Abele v. Markle is one of the best ones and influenced Justice Stewart and probably others.
Later cases clarified that this provides a clear line and time for the woman to make a decision. Again, arguably, other lines might be appropriate here. Some argue it is good in part because it is around the time brain consciousness comes into being. Overall, most abortions occur much earlier, later ones generally having health reasons or a result of delays. And, it is usually accepted that at least some abortions should be allowed earlier on. So, the breadth of the problem is unclear. Ultimately, imperfect as the line might be, lines tend to be imperfect, and it's quite defensible on balance. As Justice Blackmun later noted, hindsight and experience providing a crisper summary of the rationale:
The viability line reflects the biological facts and truths of fetal development; it marks that threshold moment prior to which a fetus cannot survive separate from the woman and cannot reasonably and objectively be regarded as a subject of rights or interests distinct from, or paramount to, those of the pregnant woman. At the same time, the viability standard takes account of the undeniable fact that as the fetus evolves into its postnatal form, and as it loses its dependence on the uterine environment, the State's interest in the fetus' potential human life, and in fostering a regard for human life in general, becomes compelling. As a practical matter, because viability follows "quickening" — the point at which a woman feels movement in her womb — and because viability occurs no earlier than 23 weeks gestational age, it establishes an easily applicable standard for regulating abortion while providing a pregnant woman ample time to exercise her fundamental right with her responsible physician to terminate her pregnancy.
Given the strong criticism of Roe, and the fact that the lower courts split on this question (one reason why the Supreme Court appropriately addressed it) via substantive opinions on both sides, it is striking that it was a 7-2 ruling. Not only that, the dissents were so thin. Justice White actually wrote a decent opinion* later on voicing his p.o.v. with Stevens answering him. White -- who joined Griswold recall -- has a brief opinion that rejects (without analysis) the application of precedents to abortion, says the Texas law is not vague (the lower court held it was -- a doctor would not know when "life" was so threatened to allow it) and suggested a significant amount of women (rather "putative mothers") for "no reason" got abortions. It is an offensive and shoddy effort.
Justice Rehnquist also wrote a short dissent, which broadly rejected the general approach of the majority. First, it wanted to avoid deciding since "Roe" was not pregnant. How this question should be decided given the length of the appellate process is unclear. (Texas' advocate once bluntly said it very well might not be able to be done.) Next, "privacy" was given a limited meaning and/or not accepted as a fundamental right warranted heightened review. This would mean a lot more than abortion rights were negatively affected (Griswold wasn't decided on a minimal rationality test; this complication was simply not addressed). General remarks about how far and intricate the majority opinion was. And, how ongoing abortion laws shows that an appeal to a "so rooted in the traditions and conscience of our people as to be ranked as fundamental" test would fail here.
Rehnquist appealed to this latest argument in later cases too, including applied to homosexuals. In effect, times might be changing, but let the legislatures handle that. He's not a strict judicial restraint guy in other cases, that is, when he feels the Constitution requires striking things down. And, this applies here. The test cited has been used. But, what does it mean? For instance, if a general principle like marriage privacy is cited, is that what we should rely on, or specific regulations that might violate the principle, but still be widely on the books in some fashion? And, what if the regulations are unevenly applied or if the original justifications no longer stand up to the test of time?
Sarah Weddington in her first go around (there were two oral arguments for Roe and Doe) provided a long discussion on how forced pregnancy negatively affects the lives of women to show how the choice here was "fundamental." Justice Stewart warily suggested that she was making a policy argument. But, she was on to something -- "fundamental rights" is an old term and there were and are various ways to flesh out its meaning. And, Stewart himself came around as he expressed in his own concurring opinion:
The basic right to "liberty" protected by the Due Process Clause (etc.) covers this ground. One last thing. Roe v. Wade cites Terry v. Ohio, the stop and frisk case that honors the right to privacy, here freedom from unwarranted seizure. But, Roe was argued mostly as a reproductive choice case. Casey later did also note that various cases protected bodily integrity overall, including against such things as unwarranted blood transfusions, forced vomiting of evidence, being required to take mind altering drugs and so forth. Along with the equal protection component, doctrinally in its infancy at the time, this was something of a missed opportunity.Certainly the interests of a woman in giving of her physical and emotional self during pregnancy and the interests that will be affected throughout her life by the birth and raising of a child are of a far greater degree of significance and personal intimacy than the right to send a child to private school or the right to teach a foreign language [protected in past cases].
But, such is the value of ever developing law.
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* The opinion still has the basic problem -- noted by Stevens -- that the rights honored before conception suddenly stop after. Why? Well, there is something unique about the fertilized egg, the beginning of a new human. The Catholic Church among others, however, don't draw that line. Roe etc. details how society and law doesn't treat such an entity in such a special fashion to overwhelm basic rights. It basically comes off as arbitrary. Still, it is appreciated that the matter was seriously addressed.
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