Wolf to Doe

Update: I added the section on torture and a link in memory of the recent death of the woman involved in Mapp v. Ohio.  Al Smith also has died, his alleged private right to practice religion as he saw fit relevant to my overall discussion as well.  The difficulties on talking about abortion was the subject of a recent blog post as well with notable comments.

Due process of law thus conveys neither formal nor fixed nor narrow requirements. It is the compendious expression for all those rights which the courts must enforce because they are basic to our free society. as of any one time, even though, as a as of any one time, even though, as a matter of human experience, some may not too rhetorically be called eternal verities. It is of the very nature of a free society to advance in its standards of what is deemed reasonable and right. Representing as it does a living principle, due process is not confined within a permanent catalogue of what may at a given time be deemed the limits or the essentials of fundamental rights.

This is example of Justice Frankfurter's discussion of the meaning of "due process of law" and query if it is any less flowery or somewhat over the top than the language at times sneered out by Douglas or these days Kennedy. Justice Black didn't like such language -- he thought it was a sort of "whatever turns my stomach" test as compared to principled judging. But, Black was dissenting from standard language, not that it is the only way to do things. His First Amendment absolutism, which didn't stop him from dissenting in the armband and "fuck the draft" cases, shows broadly applying specific provisions can do the trick. It also shows that lines -- inexact and debatable in many cases -- will be drawn all the same, since few rights are truly absolute as all that.


The case itself -- Wolf v. Colorado (1948) -- is noted for at least two reasons given the last post.  First, it deals with an illegal abortion.  Second, it is one of many times where a right of privacy was cited in the years before Griswold v. Connecticut. 

The security of one's privacy against arbitrary intrusion by the police-which is at the core of the Fourth Amendment-is basic to a free society.

The problem for the physician here is that the ruling did not apply the so-called exclusionary rule to the states -- another case that also spoke of a right to privacy did over a decade later -- so the seized evidence was still allowed to be used against him. It was left to Justice Tom Clark, a conservative in various ways (including communism cases, obscenity and various criminal justice rulings)  to later write Mapp v. Ohio (RIP), noting that excluding evidence is the only realistic way to defend against wrongly seized evidence.  Justice Stewart concurred on other grounds, but later after he retired wrote a defense of the rule in question.

Wolf cited a case that is quite topical today with the release of the Senate report on torture. Brown v. Mississippi was a 1930s case, an era before the the Bill of Rights as a whole were applied to the states. Still, it held that "that state action, whether through one agency or another, shall be consistent with the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions." The action found in violation here was "compulsion by torture." The concern holds today as well, since torture is illegitimate even when not done to obtain evidence eventually used against you in trial. A complete respect for basic constitutional rights here protects the suspect held in custody as well as the woman whose bodily autonomy is possibly invaded in another fashion.

Anyway, as noted, before deciding Roe v. Wade and Doe v. Bolton, the USSC dealt with U.S. v. Vuitch, which upheld the law, but gave a broad definition of "health."  In the long run, this was seen as basically a strategic victory on the abortion legalization side, except for some who was pushing for a legislative repeal strategy (the ruling made more restrictive laws with "health" exceptions -- which could rest things on the whim of the physician or hospital in question -- seem less extreme).  I don't know the numbers exactly, but four states before Roe passed some broad repeal, while some others had various exceptions. It took a governor's veto to save the NY repeal and Connecticut reaffirmed its ban after the first go around in the Abele v. Markle case cited, reaffirming unborn life was key to that state.

The Vuitch ruling particularly was appreciated by many physicians and the like since it furthered the moderate "reform" approach that allowed "health" exceptions.  The government even during oral argument showed a willingness to fit a rape or severely deformed fetus (an issue with thalidomide scares and the like) if "mental" health was affected. Again, early abortion was safer than childbirth. It might be seen as too much of a stretch to include all the personal reasons behind abortion as "health," though honestly I wonder, but it still could cover a lot of ground.* 

Events overwhelming this, of course, with Roe v. Wade answering a total ban (with merely a life of the mother exception, if one less restrictively applied than some countries') with a broad ruling for abortion choice.  Personally, I think the opinion didn't have to go as far as it did. Multiple lower court rules struck down broad bans, made a general statement that abortions had to be allowed early in the pregnancy, but did not set up the "trimester scheme" involved there. Still, the basics would still be necessary, so again, the criticism to me only goes so far.  A limited ruling, letting later cases deal with specifics would have been ideal though. 

Doe v. Bolton did require more since Georgia's law had various exceptions.  The "abortion is special" restrictions problem came into play here. Special accreditation rules, committee approval and two doctor involvement were found to illegitimately single out abortion and wrongly interfere with the private choice with her physician whether or not to have one. Abortion need not be "on demand." A "physician or any other employee" can even for "moral or religious" reasons not take part.** It should however not be treated unlike other medical procedures without proper cause. The opinion also is an early flag that such restrictions can burden abortion choice in ways the harm health.  The law also was found to violate the Privileges and Immunities Clause since it limited abortions to state residents.

The proper balance here continues to be the subject of constant litigation, the Casey ruling pushing things the government's way. 

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* Doe v. Bolton reaffirmed this by interpreting a provision in the Georgia law regarding allowance of "necessary" abortions broadly:

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.

I find this telling myself and later divisions of abortions into "therapeutic" and "non-therapeutic" for purposes of denying health coverage (e.g., Medicaid) to me is unreasonable.  Each abortion is "therapeutic" in some fashion. Some very well might not want to see this as merely a health issue, which is fine, but to me it in a significant fashion quite is.

** The opinion appears to be interpreting the "right" protected by the state statute here, but by implication, the woman's right is not being illicitly violated in the process.  Just how far these people have an independent state or federal constitutional right not to be involved is a separate question. And, what if it was a medical emergency?