Hello there, Dr. E. here. Today I am pleased to introduce you to our newest coblogger at The Moderate Voice, Elijah Sweete. You may remember articles of his I ran as Guest Voices under my bi-line, particularly his articles on the Death Penalty panel in Texas and the Governor’s seeming meddling in its outcomes, and another which was a strong interview with a vegan with fierce viewpoints. I invited Mr. Sweete to write at will at TMV, but also requested he write about Roe v. Wade, as my reading across the blogosphere indicates that quite a few readers seemingly dont know or recall the actual facts of the case, nor its precise legal outcomes and influences in various states since then. My hope is to refresh some of the most pertinent facts for those who are interested, and perhaps discourse might continue to evolve around more than “Yes it should,” “No it shouldn’t.” My brush with law school nowhere near gives me the eloquence Mr. Sweete brings in writing about the law… he having clerked for a state Supreme Court justice, and practicing for many years now, being current counsel to a group of 18 companies. You can read the rest of his bio here. Welcome ES.
A Reasoned Look At Roe v. Wade
By Elijah Sweete
Roe v. Wade, eight letters and one punctuation mark that raise passions like almost no other. Some celebrate and defend the decision’s confirmation of a woman’s personhood ensconced in a right to choose. Others decry and attack it for giving constitutional cover to the taking of life. It has become a political sound-bite, an anthem in two words and a “v”. Still, few have read or fully understand the case itself.
The main opinion of the case, by Justice Blackmun, is 53 pages, 36 of which are devoted to procedural nuances and a recitation of abortion history going back to pre-Greco, Persian culture. The first 16 pages delve into procedural obscurity that results in two of the plaintiff’s having their cases dismissed for lack of standing and leaving only Roe. The most interesting part of the procedural prequel is the Court’s election to bypass its own general rule of not hearing declaratory judgment cases on direct appeal. As Justice Renquist points out in his dissent, the rationale is less than compelling, but the truth is that the Supreme Court hears what it wants to hear.
The 20 pages of abortion history are constructed in a more or less chronological account of abortion’s evolution in a cultural and legal context. In Greek and Roman times “it was resorted to without scruple.” It discusses the opinion of the Ephesian gynecologist, Soranos, and notes the Greek split between Hippocrates (opposed) and other physicians (supportive) on abortion, and reminds us of the patriarchal culture of ancient times, “If abortion was prosecuted in some places, it seems to have been based on a concept of a violation of the father’s right to his offspring.”
Much is made of mediate animation, the point between conception and birth where the fetus is believed to acquire a soul. Initially equated with quickening, the first recognizable movement in utero, soul-acquisition was ultimately defined as 40 days after conception for a male fetus and 80 days for a female. How people in the thirteenth century would have known male or female in utero is not explained, but abortions performed within those time frames were generally considered neither illegal nor immoral. The view held sway until well into the 1800’s. Notably, mediate animation was the official position of the Catholic Church until well into the 19th century when it adopted its current life begins at conception doctrine.
The quickening standard was in effect from the founding of the United States until the latter half of the 19th century in all but a few states. As Justice Blackmun put it, “…at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect[in 1973].” In 1857 a committee of the American Medical Association took up the abortion issue and recommended that all abortion be made criminal, before or after quickening, and that abortion be permitted only when the life of the mother was threatened, and it required concurring opinions from consulting physicians.
It was in this vein that Texas, Roe’s home state, adopted its statute, placing the decision with the doctor, plus two concurring doctors. Since most physicians were male, and the statute required no consultation with the patient, the abortion decision about risk of death to the mother was one that was almost entirely male. The Texas statute, or close variants of it, were the law in all but four states and D. C. until the early 1950’s. And, like Texas, most of those laws were little changed from their adoption in the 1800’s.
Meanwhile, by 1973, times and culture were changing in America. Abortion had become a relatively safe procedure, no longer having a higher mortality rate than childbirth as was the case when the AMA first visited the issue in 1857. The “morning after” pill had made its debut. The sexual revolution had swept across America in the late 50’s and through the 60’s. The Women’s Movement was in full gear. On the ground across America, illegal abortion mills, back alley abortions and attempts at self-abortion were crippling, deforming and killing American women desperate to abort. Others travelled across state lines and national borders for legal abortions.
And, though never mentioned in the opinion, the Supreme Court was changing. The old liberal warhorses could see their window closing. Nixon had appointed three justices, Warren Burger, Harry Blackmun and William Renquist. Potter Stewart and Byron White had annoyed the liberals for years with their moderate, swing vote positions. The old liberals could still cobble together a Court majority, but their time was limited.
In the decade before Roe, a majority of lower courts addressing the issue had found old criminal abortion statutes unconstitutional, for varying reasons, while a minority of lower courts had upheld those laws. A third of the states had liberalized their abortion laws, and in 1967 the AMA, seriously revisiting the issue for the first time in 110 years, took a far more liberal position, liberalized even further in 1970.
It was in this context that the Supreme Court in October of 1972 heard argument, and in January of 1973 rendered its decision.
What Roe v. Wade Does and Doesn’t Do
• It does not sanction abortion on demand, though it comes close to that in the pre-viability stage of pregnancy.
• It does allow states to regulate, or even proscribe, abortion post-viability.
• It does find that a fetus is not a person or a citizen for constitutional purposes.
• It recognizes that the rights of mother juxtaposed against the rights of fetus change over the course of a pregnancy.
• It does recognize a right of privacy, while admitting that such a right is not expressly contained in the Constitution.
• It does not recognize privacy as an absolute right, but as a qualified right.
• It does not draw a line at the first trimester of pregnancy.
• It does shift the decision making process to the woman’s side of the ledger “in consultation with her physician”.
The Court’s legal analysis entertains the question of whether a fetus is a “person” in constitutional terms. Referring to the Fourteenth Amendment’s definition of citizen, “born or naturalized”, the Court determines that the word “person” as used in the Constitution “does not include the unborn.” Thus, a fetus may have certain limited rights, but not full constitutional rights.
The Court then, almost ironically, reverts back to something akin to the old quickening argument, substituting viability outside the womb as the cut-off point before which the state cannot interfere with an abortion decision. It defines this, in 1973 terms, as “approximately” the end of the first trimester, but draws no hard line and acknowledges that the viability standard may shift with medical advances.
It allows that, pre-viability, states may regulate who may perform abortions, where they may be performed and establish health and safety regulations related to abortion. It allows that, post-viability, “…the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except…for the preservation of the life or health of the mother.” The Court expressly rejected the abortion on demand argument put forward by Roe’s attorneys.
The Court engages in a, frankly, rather rambling discussion of the origins of the constitutional right of privacy. It observes that some courts have found the right in the Ninth Amendment’s reservation of rights to the people, others in the penumbra of the Bill of Rights and still others in the Due Process clause of the Fourteenth Amendment. The Court finds all these theories apparently acceptable, but rests this decision on the Fourteenth Amendment approach, rather than the penumbra approach of Griswold v. Connecticut. The penumbra approach is a theory by which, if you take all the rights in the Bill of Rights and consider them as a whole, they add up to an intent to endow the citizens with a general right of privacy. It is then posited that “The privacy right involved…cannot be said to be absolute.”
Justice Potter Stewart concurs in the opinion after bemoaning the use of substantive due process, and Justice William Renquist writes separately in dissent. Renquist’s dissent is interesting in that it presents one of the opening salvos in the modern era regarding activist/strict constructionist constitutional interpretation. After accepting that there is a right of privacy, Renquist argues that abortion does not fall within the meaning of privacy, “A transaction resulting in an operation such as this is not ‘private’ in the ordinary usage of that word.” The words echo even now in light of more recent decisions. Renquist also argues that the Court over reaches by declaring the entire Texas statute unconstitutional rather than limiting unconstitutionality to its pre-viability application.
Full opinion here
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[Author’s Note: Elijah Sweete is a pseudonym in honor of an extraordinary person in my life whose passing 35 years ago has not been forgotten. You can call me that, or you can call me Glen, as Dr. E who knows me does, or just tidbits.]
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Note from Dr. E:
The photo above shows the 1973 Supreme Court Justices, the nine men who decided the Roe vs Wade case thirty-seven years ago.
Contributor, aka tidbits. Retired attorney in complex litigation, death penalty defense and constitutional law. Former Nat’l Board Chair: Alzheimer’s Association. Served on multiple political campaigns, including two for U.S. Senator Mark O. Hatfield (R-OR). Contributing author to three legal books and multiple legal publications.