Roe v. Wade 410 U.S. 113 (1973) Doe v. Bolton 410 U.S. 179 (1973)

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ROE v. WADE 410 U.S. 113 (1973) DOE v. BOLTON 410 U.S. 179 (1973)

In these cases the Supreme Court confronted the emotionally charged issue of abortion. The decisions invalidated two states' abortion laws—and, by inference, similar laws in a majority of states. As a result, the Court was plunged into prolonged and intense controversy, ranging from questions about the bearing of morality on constitutional law to questions about the proper role of the judiciary in the American system of government. The Court held unconstitutional a Texas law forbidding abortion except to save the pregnant woman's life and also invalidated several features of a Georgia law regulating abortion procedures and limiting abortion to Georgia residents.

The two women whose fictitious names grace the cases' titles were pregnant when they filed their actions in 1970, but not at the time of the Supreme Court's decision. The Court nonetheless held that their cases were not moot; rigid application of the mootness doctrine would prevent appellate review of an important issue that was capable of repetition. Nine doctors were also held to have standing to challenge the Georgia law; the intervention of a doctor under prosecution in Texas was held improper under the equitable abstention principle of younger v. harris (1971); and a Texas married couple was denied standing because the woman had not been pregnant. The Court thus proceeded to the constitutional merits.

The Roe opinion, by Justice harry a. blackmun, reviewed the history of abortion laws and the recent positions on abortion taken by medical groups and the American Bar Association, but the Court grounded its decision on neither history nor current professional opinion. Instead, the Court relied on a constitutional right of privacy previously recognized in griswold v. connecticut (1965) and now relocated in the "liberty" protected by the due process clause of the fourteenth amendment. This right included "a woman's decision whether or not to terminate her pregnancy," which decision was a fundamental interest that could be restricted only on a showing of a compelling state interest.

The Court identified two state interests that would qualify as "compelling" at different stages in pregnancy: protection of maternal health and protection of potential life. Before discussing these interests, however, the Court dealt with a preliminary question: whether a fetus was a person within the meaning of the Fourteenth Amendment. In an abortion, of course, it is not the state that denies life to a fetus; presumably the point of the Court's question was that if a fetus were a "person," the amendment should not be read to bar a state from protecting it against being aborted. The Court concluded, however, that a fetus was not a "person" in the amendment's contemplation. In reaching this conclusion, Justice Blackmun said: "We need not resolve the difficult question of when life begins." Absent a consensus among doctors, philosophers, or theologians on the issue, "the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer." In any event, the law had never recognized the unborn "as persons in the whole sense." That conclusion alone, however, could not dispose of the question of the state's power. A state can constitutionally protect beings (or even things) that are not persons—including fetuses, which surely can be protected by law against certain kinds of experimentation or disposal, even though the law may be motivated by a feeling that fetuses share our common humanity.

The Court did recognize the state's interests in protecting maternal health and potential life; each would become "compelling" at successive stages of pregnancy. During the first trimester of pregnancy, neither interest is compelling; the abortion decision and its implementation must be left to the woman and her doctor. During the second trimester, the interest in maternal health becomes sufficiently compelling to justify some state regulations of the abortion procedure. When the fetus becomes "viable"—capable of life outside the womb, around the beginning of the third trimester of pregnancy—the state's interest in potential life becomes sufficiently compelling to justify prohibiting abortion except to preserve the "life or health" of the mother.

This scheme of constitutional rights has the look of a statute and evidently was influenced by New York's liberal law and the American Bar Association's model abortion law. Investigative reporters tell us that the three-part scheme resulted from negotiation among the Justices, and it is hard to see it as anything but a compromise between banning abortion altogether and turning over the entire abortion decision to the pregnant woman.

Justice byron r. white, dissenting, complained that the Court had permitted abortion to satisfy "the convenience, whim or caprice of the putative mother." Chief Justice warren e. burger, concurring, responded that the Court had rejected "any claim that the Constitution requires abortion on demand" in favor of a scheme relying on doctors' "medical judgments relating to life and health." The Court's opinion deals ambiguously with the doctor's decisional role. At one point it states that the abortion decision "must be left to the medical judgment of the pregnant woman's attending physician." Yet the Court's decision rests on the constitutional right to privacy, which includes "a woman's decision whether or not to terminate her pregnancy." Very likely Justice Blackmun, a former general counsel of the Mayo Clinic, was influenced by the medical authorities he cited. Indeed, the Blackmun and Burger opinions both convey an inclination to convert abortion issues into medical questions. Linking the state's power to forbid abortions with "viability" is one example—although it is unclear how the Court will respond when medical technology permits the preservation of very young fetuses outside the womb. Similarly, a supposed lack of medical consensus made the Court reluctant to decide when life begins.

The issues in Roe, however, were not medical issues. First, there is no medically correct decision concerning an abortion when the pregnant woman's health is not endangered. Second, there is no lack of medical consensus about what happens in the normal process of reproduction from insemination to birth. In some sense "life" begins at conception; to say otherwise is not to make a medical judgment but to decide a question of law or morality. The problem before the Court in Roe was to determine whether (or when) a state could constitutionally protect a fetus. The state's interest in potential life surely begins at the time of conception, and arguably before. Yet if Griswold and eisenstadt v. baird (1972) remained good law, the state could not constitutionally protect that interest by forbidding contraception. Most people do not equate the use of "morning after" pills or intrauterine devices with murder, although these forms of "contraception" are really ways of effecting abortion after conception. In 1973 no state was enforcing its abortion laws against such practices. Yet the argument that "life" begins at conception, for purposes of defining legal or moral rights, embraced the claims of both the newest embryo and the eight-month fetus. There was evident artificiality in the Court's selection of "viability" as the time when the state's concerns for potential life became "compelling," but there would have been artificiality in any resolution of the issue of state power other than an all-or-nothing decision.

In Roe 's companion case, Doe v. Bolton, the Court held invalid four provisions of Georgia law, requiring that abortions be: (1) performed in hospitals accredited by the Joint Commission on Accreditation of Hospitals; (2) approved by hospital staff committees; (3) approved in each case by two physicians other than the pregnant woman's doctor; and (4) limited to Georgia residents. The latter requirement was an obvious violation of Article IV's privileges and immunities clause, and the other three were held to impose unreasonable restrictions on the constitutional right recognized in Roe.

The Roe opinion has found few defenders; even the decision's supporters are inclined to offer substitute justifications. Roe 's critics divide roughly into two groups: those who regard abortion as murder, and those who think the Supreme Court exceeded its proper institutional bounds, failing to ground its decision in the Constitution and merely substituting its own policy judgment for that of the people's elected representatives.

The latter criticism touched off an impressive succession of essays on judicial review. It was the former group of critics, however, who dominated the politics of abortion. The "right to life" movement was, for a time, one of the nation's most effective "single issue" groups, achieving enough respect from legislators to permit the adoption of laws withdrawing governmental financial aid to poor women who seek abortions. (See maher v. roe, 1977; harris v. mcrae, 1980.) Various constitutional amendments to overturn Roe were proposed in Congress, but none was submitted to the states for ratification. In the early 1980s Congress considered, but did not adopt, a bill declaring that "human life begins from the moment of conception." Congress also heard proposals to withdraw federal court jurisdiction over abortion cases. (See judicial system.) Yet the Roe decision has weathered all these political storms.

Roe 's stability as a precedent is founded on the same social and political base that initially supported the decision. It was no accident that Roe was decided in the 1970s, when the movement against sex discrimination was winning its most important constitutional and political victories. The abortion question was not merely an issue between pregnant women and their unwanted fetuses; it was also a feminist issue, going to women's position in society in relation to men. Even today American society imposes a greater stigma on unmarried women who become pregnant than on the men who father their children, and society still expects women to take the major responsibility for contraception and child care. The implications of an unwanted pregnancy or parenthood for a woman's opportunities in education, employment, and personal association—indeed, for the woman's definition of self—are enormous. Justice White's dissenting remark, that abortion regulation is an issue about which "reasonable men may easily and heatedly differ," perhaps said more than he intended to say.

Kenneth L. Karst
(1986)

(see also: Reproductive Autonomy.)