Reflections on Roe
v. Wade
September 27, 2020
President Donald Trump has
nominated Judge Amy Coney Barrett, Judge of the Seventh Circuit Court of
Appeals, to replace the late Justice Ruth Bader Ginsburg on the United States
Supreme Court. News reports say she is personally a conservative Roman Catholic
Christian. She of course has the same rights as any other American to her
personal faith. That she is personally a conservative Roman Catholic is not the
issue here. The issue is that she is by all accounts a staunch opponent of
abortion. It appears that she opposes the United States Supreme Court case of Roe
v. Wade, 410 U.S. 113 (1973), which established a constitutional right to
abortion throughout the United States. Judge Barrett’s nomination raises the
issue in a way few judicial appointments before hers have of whether a judge’s
personal moral convictions so color her judicial reasoning that her decisions,
or at least some of them, reflect more her moral beliefs than they do
independent judicial decision making.
More particularly, Judge Barrett’s
nomination to the Supreme Court raises the question of whether there are now
enough Supreme Court justices opposed to abortion on moral grounds that the
Court will overturn Roe v. Wade when a case comes before it that
presents the Court with the opportunity to do so. I of course do not know the
answer to that question. I don’t think anyone does. Judge Barrett’s nomination
is however a good occasion for us to look at Roe not as a matter of
morality but of law. I read Roe v. Wade years ago when I was in law
school. I remember that decision much better than I remember most cases I read
back then, I suppose because it has had such a high public profile ever since
it was issued. Here are some of my thoughts about the Roe decision.
Roe was issued in 1973. At
that time many states and the federal government had laws that prohibited
abortion either outright or with limited exceptions such as pregnancy resulting
from rape or incest or to save the life of the mother. A woman named Norma McCorvey,
who appeared in the case under the pseudonym Jane Roe (a legal equivalent of
John Doe) challenged such a law, specifically a Texas law that outlawed
abortion except when it was necessary to save the life of the mother. She
prevailed at the trial court level. The Supreme Court accepted direct review,
which is something the Supreme Court rarely does. That meant that the case
bypassed the federal circuit court of appeals to which appeals from trial court
decisions usually go. The Chief Justice assigned writing the majority opinion
to Justice Harry Blackmun. His opinion on behalf of the court held that the
Fourteenth Amendment and other constitutional provisions create an individual
right of privacy, something the court had previously found in a case I’ll
discuss briefly below. The opinion holds that the state may not violate that
right of privacy when it comes to such an intimately personal decision as the
decision to terminate a pregnancy. The Court found state and federal laws
against abortion therefore to be unconstitutional and hence unenforceable. The
decision invalidated all laws against abortion in the entire country.
I remember that when I read the Roe
decision that I thought that, while I generally agreed with he outcome of the
case, it is a very poorly written and reasoned opinion. Its legal reasoning
relies primarily on the earlier case of Griswold v. Connecticut, 381 U.S.
479 (1965). In that case the Supreme Court ruled unconstitutional a Connecticut
law from the nineteenth century that prohibited all things intended to inhibit
or prevent conception. The Court stated that the law violated a couple’s “marital
privacy.” It found that the US. Constitution creates such a constitutional
right of privacy though neither the phrase right of privacy nor even the word
privacy appears in the Constitution. The Court nonetheless found a right of
privacy inferred in the Fourteenth Amendment and other constitutional
provisions. In Roe the Court applied that inferred constitutional right
of privacy to the issue of abortion and found laws prohibiting abortion to be
unconstitutional because they violate a woman’s personal right of privacy in
making such a personal and often confidential decision as one to terminate a
pregnancy. Blackmun’s opinion in Roe says that it is not deciding the
moral/legal question of when human life begins. It does more or less prohibit
the banning of abortion in the first three months of a pregnancy. It more or
less leaves open the possibility of restrictions on abortion after the first
three months.
Roe has been controversial
ever since it was decided in 1973. Many states have enacted laws that have
intended at least severely to limit abortion while still somehow being
permissible under Roe. Those attempts to limit the effect of Roe
have been based on politicians’ desire to please those portions of their
electorate that object to abortion on moral grounds. Any challenge to Roe,
however, would have to based on legal not moral arguments. There are at least
two separate primarily legal objections that can be raised against the case.
One contends that the question of whether or not the state can prohibit
abortion cannot be decided without deciding the question of when human life
begins, which Roe says it does not do. After all, all states prohibit
the intentional killing of a human being. Although Roe says it does not
decide that question, it necessarily implies that a conceived embryo or fetus
is not a human being for at least the first three months after conception.
Blackmun’s decision also at least infers that applying Griswold’s constitutional
right of privacy to abortion raises no more of a moral issue than does Griswold’s
application of that inferred right to contraception. It is not at all clear that
that inference is correct. Contraception prevents the creation of a human
embryo. Abortion stops the further development of a created human embryo or
fetus into a human being. The two issues are actually not morally identical. Roe
treats them as if they were. It could therefore be found to be legally faulty.
The second possible ground for
objecting to Roe is the one vociferous opponents of the decision have
raised since the case was decided. It is closely related to the first objection.
It is the belief that human life begins at conception. Opponents of legalized
abortion contend that life does indeed begin at conception and that therefore
abortion at any stage of a pregnancy constitutes the taking of a human life. Opponents
of Roe argue that the state has not only the right but the duty to
outlaw the taking of human life. They argue, or at least could argue, that even
if there is a constitutional right of privacy, that right cannot override the
state’s obligation to criminalize murder. Just because I kill someone in
private rather than in public does not protect me from a murder charge. These
opponents of Roe argue that the state’s right and duty to outlaw murder
overrides any right to privacy a person may have.
There is at least one legal argument
that weighs quite heavily in favor of retaining Roe in addition to
arguing that the case is properly decided. It is the argument from
precedence. Roe has been the law of the land for forty-seven years. The
Supreme Court has had numerous cases before it in which it could have
overturned Roe, but it hasn’t done so. Americans have been able, more or
less, to rely on Roe as the law of the land for nearly half a century.
Courts always say they are and should be reluctant to overturn long-established
legal precedent. The Supreme Court does it rarely, but it has done it. Most
famously the 1954 case of Brown v. Board of Education overruled the 1896
case of Plessy v. Ferguson that had ruled that racially segregated
public facilities are constitutional as long as they are equal. Separate but equal
became the law of the land. Plessy had been in effect for fifty-eight
years when Brown overturned it and held that racially separate
facilities are necessarily unequal and therefore unconstitutional. The courts
however traditionally have been reluctant to overturn existing precedent
without a compelling legal reason to do so. In Brown attitudes toward
racial segregation, and the attitudes toward it of the justices of the Supreme
Court, had changed significantly since Plessy was decided. In the 1950s
more and more Americans were waking up to the injustice of legal segregation, a
change that played a role in the Supreme Court’s decision to overturn Plessy.
If there has been a change in public attitudes toward abortion since 1973 when Roe
was decided it has been in the direction of more people approving of a woman’s
right to make her own reproductive choices without state interference. The kind
of societal changes that led the Brown court to overturn Plessy are not present in the case of Roe v. Wade.
There is therefore less reason to overturn Roe than there was to overturn
Plessy.
One of the reasons that the public
debate over abortion and the Roe decision has been so vociferous is that
the two sides of the debate talk past rather than to each other. Opponents say abortion
is murder. Proponents of legalized abortion say a woman has a right to choose
whether or not to bear a child. For the most part at least, neither side of the
debate actually addresses the arguments of the other side. It seems to me that
the opponents of Roe could concede that there is a constitutional right to
privacy and that Griswold is rightly decided but argue that that right
does not outweigh the state’s duty to prevent murder. The supporters of Roe
could address the opponents’ argument that abortion is murder more directly by
marshalling medical evidence of when a fetus becomes a human being such as
perhaps determining at what state of development a fetus starts to produce
recognizably human brain activity. Then at least the two sides would not be
talking past each other.
If my personal position on the
issue of abortion and overturning Roe isn’t clear yet, let me make it
clear now. As a general matter I strongly dislike abortion, but I recognize
that as a male I am in no position to tell any woman what reproductive
decisions she must make. I believe that the only thing worse than legal
abortion is illegal abortion. Overturning Roe would not end abortion, it
would only end legal abortion in those states that have laws against it. If Roe
were overturned women in those states would once again turn far too often to
unqualified hacks to obtain an abortion. The result would be significant harm
to and even the deaths of many desperate women. I do not want us to return to
the bad old days when such was the norm. Better that we should preserve legal
abortion, then do meaningful sex education and provide affordable medical care
to reduce the number of unwanted pregnancies. A system along those lines would
be so much better than either outlawing abortion or making it legal but
providing no support to people, especially young people, to help them remain
celibate or practice sex responsibly.
I also believe that the moral issue
around abortion really does turn on the question of when human life begins. It
is immoral, and it must be illegal, to take a human life. I understand why so
many opponents of legal abortion feel so passionately about it. Catholic
priests and conservative Protestant pastors have told them for decades that
life begins at conception. Many of these people sincerely believe that all
abortions are the murder of a living human being. That contention makes logical
sense. There is a straight, unbroken line of development from conception to the
birth of a human infant.
Yet that contention doesn’t
necessarily make medical or moral sense. A fertilized human egg cell doesn’t
resemble a human being at all. It has human DNA, but it has no human features
whatsoever. It simply is not yet a human being. If it develops normally it will
at some point become a human being. A human baby is of course a human being at
birth. It makes no sense to say that that human being was not a human being
moments earlier when she was still in her mother’s womb. When does the change
from nonhuman to human take place? I don’t know. There certainly seems to be no
clear, bright line between nonhuman and human in the in utero development of a
human child. I suspect the question may best be left for experts in medical
ethics, which I am not.
Still, I believe that the state can
and should allow abortion of an unhuman embryo or fetus. Yet I agree at least
generally with those who oppose specifically late term abortions. I believe
that the state may and should ban abortion of a clearly human fetus except when
aborting the fetus is necessary to save the life of the mother. I also thank
God that I never have to decide in any specific case when an abortion is
permissible and when it is not.
So should the Supreme Court
overturn Roe v. Wade? It is a badly written opinion, but no, I don’t believe
that the Court should overturn it. I do believe as I said that we must do a
better job than we do of sex education in the schools. We must do a better job
than we do of making methods of contraception available to everyone who wants
them regardless of ability to pay. We must do a better job of supporting women
with newborn or young children with affordable child care and medical services.
There is so much we could be doing to reduce the number of unwanted
pregnancies. Planned Parenthood does good work in that field. Our states and
the federal government should be doing it too more than they are. We could and
should reduce the number of unwanted pregnancies better than we do while
leaving Roe v. Wade as the law of the land.
