Roe v. Wade Doesn't Turn 50

The Court got Roe right 50 years ago. It was a balanced decision with broad national consensus that the majority of Americans have continued to support for the last 50 years. And it was a constitutional principle upheld by justices appointed by Democratic and Republican Presidents alike.

Roe v. Wade was handed down, 7-2, fifty years ago.  Since high school (the Webster decision was heard in my senior year), I have been very interested in the decision and the diverse issues it involves. This is somewhat academic in my case, but a "right to privacy" involving reproductive liberty matters even to a guy without children.  I have sisters, nieces, and so on.  I care about the issues involved.  They matter to me as well.  

[There are many posts on this website and two of the others -- no symbol yet -- about abortion and related issues as well as in my book on the U.S. Constitution. The issues involved include constitutional interpretation, religion, health care, equality, medicine, speech, family issues, and more.]

The decision was not quite "balanced" though it was in time.  Only four states at that time (and New York barely retained it, the liberal Republican governor vetoing an attempt to overturn it) had broad abortion rights. And, even there, multiple states had residency requirements of the type overturned in the companion case, Doe v. Bolton.  

I think the decision -- e.g., some First Amendment issue was not decided broadly in one swoop with detailed rules set in place -- did too much at once.  There was a general acceptance of abortion rights though actually reforming laws was hard in practice, especially with male-dominated legislatures.  Some arguments aside, this would become even harder, especially in some areas, as conservatives gained more power.  

Its core is correct. A constitutional "person" is an entity that does not include embryos and fetuses, clearly not fertilized eggs. There is a right to privacy, with special implications here for women, and it includes control over abortion choices. Medical regulations are acceptable if they do not violate this choice.  TRAP laws that selectively target abortion rights instead of treating it generally as a health matter are illegitimate.  

And, viability is a reasonable dividing line, including giving women time for a choice and reflecting that "life" close enough to personhood is present here.  The line was suggested in U.S. v. Vuitch (oral argument) though since the starting place had no right to an abortion at all, various lower courts had a more limited "at least early in the pregnancy" rule to start.  

The specific requirements that the opinion set in place in the "trimester scheme" is the sort of messy thing that might have gone down differently. But, the bottom line is valid.  At the time, there was basically an arbitrary system where someone could get an abortion in some cases, but not consistently and using guidelines not applied fairly.  

Justice Blackmun originally wished to rely on vagueness in Roe -- a "life" exception did not give doctors enough clarity on when abortions were allowed.  Justice White ridiculed this, but the lower court opinion partially rested on that ground.  And, it was valid, even less so than "health," it was not clear to doctors just how much risk of life as compared to "merely" health they were supposed to allow.  

The earlier federal case (cited) out of D.C. upheld an abortion regulation, but only did so by broadly defining "health." It is unclear how much room there really was between the open-ended definition by the controlling opinion (the justices split in various ways) and Stewart's argument that the law basically allowed abortions by licensed physicians using medical judgment.  Ideally, that would be the rule.  

A "reasonable" approach with "health" exceptions in practice then and now is unreasonable.  Griswold v. Connecticut set up a logical route to use "privacy" as the constitutional route, especially for seven male justices.  Equality, however, was and is a basic factor here.  This includes both sex and wealth with race factoring in as well.  Sexual equality was recognized in time (see Planned Parenthood v. Casey) while wealth was only recognized by a minority in the Medicaid cases.  

There was some recognition as early as the contraceptive cases that this was partially a matter of religious and moral choice. Casey expressly labeled it as a matter of conscience.  Some religious groups and clergy fought for abortion rights in the 1960s.  And, we now have quite credible (no matter how successful) challenges based on religious liberty.  

I see a book edited by Jack Balkin from some time back imagining other opinions for Roe v. Wade (including dissents) has been re-released.  I was not that impressed by the effort (though it was better than the same-sex marriage volume; Brown v. Bd. was the best effort).  One law professor involved, who was a clerk at the time, just included a slightly modified version of Justice Douglas' concurrence.  Not a bad idea.  

I think as a whole Planned v. Parenthood was a reasonable opinion, especially to the degree it went into more detail about how the right to choose is firmly the result of precedent.  The "undue burden" standard as a national rule is also acceptable, if in practice probably somewhat too weak. It is not clear to me how much difference it would have been to use the old standard with new judges. For instance, in practice, waiting periods result in undue burdens, even if they were upheld more.  

Obviously, I do not think it appropriate to overturn Roe v. Wade completely.  The approach used is even more unjust. First, the Texas bounty law is left in place, allowing state nullification.  Then, a sham grant that allegedly was only about a 15-week ban, not overturning abortion rights totally.  The failed marshmallow test five did not even have a second argument (shades of the original) to directly discuss overturning (cf. Citizens United).  

But, this is not surprising. HOW this majority came about (and WHY -- abortion was their white whale), including Barrett being confirmed as we voted for Biden (fucking shit), showed they wanted this, and actually doing it right was not a concern.  

Dred Scott is rightly seen as a horrible case but even that one was heard twice, the issues were clearly up for grabs (and Congress passed a provision to encourage the Supreme Court to decide it), and the result was somewhat symbolic (unclear how much the law changed on the ground).  And, the justices were not confirmed in ways many (rightly) found of very dubious legitimacy.  

A response to the ruling is fit here: "we need hardly say is entitled to just so much moral weight as would be the judgment of a majority of those congregated in any Washington bar-room."  The Supreme Court will hand down one or more opinions on Monday.  My sentiment is around the same. The fact we are stuck with these assholes, including the shoddy handling of the leak investigation, just rubs it in our faces, doesn't change that.  

There are so many people involved in this fight* and the recent movie with Elizabeth Banks (Call Jane) is but one-way lesser-known parties are being honored.  I will end with a reference to Linda Coffee, Sarah Weddington's lesser-known co-counsel, who also is getting some attention.  A major book about "Roe" herself was also about Coffee.  Her life, including as a lesbian, had a lot of drama, including falling into some hard times.  

She is still around, surviving for another day. 

ETA: I'm going to tack this on here since it annoys me on a "someone wrong on the Internet" level.  If someone a bit more than a Joe Smoe.

This thing is something of a hobbyhorse for the guy, and he has written a lot about it (the SB8 thing).  The two aren't the same.  

SB8 involved a nullification of Roe v. Wade via a novel law that (whatever you think about its validity) had a creative ("some genius" ala Justice Kagan) method to block people from stopping it. Not merely a normal litigation strategy, which might in some way be open to challenge. 

It is not merely that people "disagree with his legal position and do not mind people suing him into oblivion."  That's asinine. He, a damn law professor knowledgable about these topics, knows better. Or should.  

Less people "complain" because the litigation follows normal rules and involves still open issues.  People who are not dead set on abortion rights found SB8 troublesome as a matter of legal principle.  

Again, some schmuck -- including law professors -- wrong on the Internet or beyond is only so important. But, blatant wrongness with attitude to boot continues to be one of my major triggers.  I would say "pet peeves," but I think that term might belittle the importance of the principle at stake.  

If in some broad sense, the "offense" here is bad judicial policy, fine, but that STILL does not make SB8, etc. all of a piece.  Again, some law professor who would go after someone who blithely speaks about things without proper nuance in some other context should know this.  

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* The author of the unsigned three-judge opinion in Roe v. Wade was Judge Sarah Hughes, who swore in LBJ after the JFK assassination. Linda Coffee was a former clerk so did not go into the oral argument (unlike in front of the Supreme Court, she took part in that one) totally blind.  

The detail here can also be seen by her friend, a closeted gay attorney, who passed along "Roe" (he in part handled adoption cases).  He was later murdered.  A recent conservative "Roe v. Wade" movie also involves an anti-abortion black woman physician, who has a troubled life story herself.  She's also covered in the Jane Roe book.