Roe/Doe Draft

I wrote some commentary the right to choose an abortion and health care generally in recent entries. I re-checked a collection of unpublished opinions of the Burger Court, which included the two abortion cases. 

The Roe draft was limited to procedural issues and vagueness. The draft followed the approach that I suggested -- the Texas limit on abortions only for the "life" of the woman is more difficult for a physician to apply than a general "health" (that the Supreme Court already held was not vague) exception. The latter is an open-ended concept that physicians are comfortable with applying. 

White's draft dissent did not do much to challenge it. His argument is that if a "health" exception is not vague, surely a "life" exception would not be just plain talked past why the two are different. White argued that there is less covered by a "life" exception. But, the majority still makes a valid case.

Other justices wanted to decide the general question regarding the right to choose so were not interested in the vagueness rationale. Nonetheless, vagueness was a credible approach in the Roe case. 

The Georgia law had a health exception along with a variety of other issues. The Supreme Court could have handled those issues, including the complicated physician committee process, and applied an open-ended definition of "health." This would have made the limited exceptions problematic. But, they went with a more open-ended privacy rationale.

Blackmun originally wanted to make Doe v. Bolton the main opinion. Roe v. Wade strategically was a better choice since the law was so extreme (only an exception for the woman's life). Nonetheless, it also would be extreme the other way -- why have a broad opinion with rules in place on how to apply abortion rights when you can handle it in a more limited way?

The original Doe v. Bolton opinion did not have the extended history portion or the discussion explaining how constitutional personhood arises after birth. It has an excerpt from Griswold but does not do much more to provide an in-depth discussion connecting past privacy cases to the right to choose an abortion. It is quite possible -- Douglas' concurrence summarized things and other lower court opinions provided more connective tissue. 

The draft references the right to obtain advice from a physician and medical care arising from the First and Fourteenth Amendments. If this remained in the final opinion, it would have provided a stronger backing to a general right to obtain medical care. 

Later opinions held that certain types of informed consent requirements were unconstitutional burdens on the right to privacy because they were coercive attempts to pressure women not to have an abortion. It was left to lower courts to occasionally rely on First Amendment arguments, including overturning a law requiring a physician to provide an ultrasound while talking about the unborn child or some such thing. 

If Roe v. Wade clearly recognized the patient-physician relationship had First Amendment aspects, there would be another (enumerated) source for such a right. Again, Justice Douglas references this, including his earlier Poe v. Ullman dissent though not in his majority opinion in Griswold. On the other hand, it would be more open-ended, a general right to health care not more limited to choices involving marriage and parenthood.  

The dissent in Rust v. Sullivan, involving funding, addressed the First Amendment. The majority argued the government has the power to selectively fund speech. Likewise, early abortion funding cases set forth the rule the government need not fund abortion services, even if it funded pregnancy care generally. A later opinion allowed for broad regulation of professional speech while being very strict (even as applied to licensed clinics) as to the rules for "crisis pregnancy clinics," treated as advocacy. 

Breyer's dissent in that case is quite correct. Professional speech, such as informed consent rules, is legitimately treated with a lighter hand than advocacy.  But, we should do so evenhandedly. A licensed clinic that does not provide some health options can legitimately be required to have an information hotline notice. Also, many so-called health regulations are thinly veiled ideological measures. They are more suspect.  

The draft notes that a woman is not isolated in her privacy, which remains in the final opinion. I find this argument dubious. The Catholic Church thinks birth control is immoral and not truly limited to the couple. Birth control prevents the creation of new life. Connecticut also argued that it helped promote adultery and other immoral things.  

Yes, pregnancy is more complicated because of the growing prenatal life. The general argument is that there are a diverse range of views, with particular moral and religious aspects, and it should be a personal choice. 

We have a clearer agreement respecting born children, who are constitutional persons. Nonetheless, even there, privacy rights do not disappear because their interests are involved. Multiple important privacy cases involve the right of parents to choose how to raise their children. Obviously, they are not "isolated in their privacy" here. Parents still have the right to make many different decisions affecting their welfare.  

The bottom line is that there is only a difference in degree respecting how privacy rights affect third parties. We need to draw lines there, including discussing the nature of prenatal life. Roe v. Wade could have done a better job of explaining the reasons for the viability line. 

I think it would have been helpful to wait to address that issue. The original draft avoided doing so as did various lower court opinions which vaguely spoke of possible greater state regulations later in the pregnancy. The laws were so extreme that it was not necessary to address such questions with specificity.  The opinions generally noted that there were decisions to be made. The specific nuances would come later.

The drafts therefore had some interesting and possibly better nuances than found in the final decisions.  

A final bit about the influential earlier Justice Clark law review article on the right to choose an abortion. The article provides a useful backing for the right to choose an abortion arising from the principles of Griswold. Nonetheless, it argues the legislature should have more discretion in drawing the lines. He might allow some form of "reform" legislation.

His constitutional argument would still require striking down laws like Texas, which would have meant many state laws were found unconstitutional.  The opinions that cited the Clark article tended to focus on the constitutional right theme, less on the last part.