Reflections on Roe v. Wade

 

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.