A readthrough of Roe v. Wade

A readthrough of Roe v. Wade

What the majority opinion says (and what it doesn’t)

In the year I was born, the Supreme Court ruled that Texas’ statutes concerning criminal abortion were unconstitutional. That ruling forms the touchstone of the most important social, ethical, political, and judicial struggle in the US since segregation. And yet, like most people I suppose, I hadn't sat down to read what it actually says until recently.

Contrary to expectation, the majority opinion reads like an essay or opinion piece, rather than impenetrable legalese. An educated citizen should be able to read it without having attended any law school. It is long, but the main arguments can be summarized without difficulty. Let’s dive in:

MR. JUSTICE BLACKMUN delivered the opinion of the Court.

The majority opinion was written by Justice Blackmun and six other justices agreed with it. Several of those justices wrote separate concurring opinions and the other two members of the Court wrote dissenting opinions. Effectively, however, it’s this opinion that matters.

Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection.

The opinion begins by pointing out the difficulties that are unique to the case. Even before ruling, the court knew that the issue was emotional and that each side held absolute and incompatible views. Of course every ruling from the Court ought to be “free of emotion and predilection”. It’s interesting, however, that Mr. Blackmun asserted that his task was to “resolve the issue”.

Section I summarizes Texas’ 1854 criminal abortion statute which makes it a crime to procure or attempt an abortion except “for the purpose of saving the life of the mother.”

Section II goes over the three plaintiffs: Jane Roe (a pseudonym), John and Mary Doe (also pseudonyms), and James Hubert Hallford. The Does were a married couple who were worried about becoming pregnant because of health concerns and other personal reasons. Dr. Hallford was a physician who had been charged with providing abortions. Ms. Roe was a woman who was pregnant at the time of her initial suit.

Section III discusses a minor procedural issue in the appeals process which the Court chose to overlook.

Section IV concerns itself “with issues of justiciability, standing, and abstention.” Dr. Hallford was found to not have standing as he was a defendant in a pending state trial under the very statutes in question. The majority opinion did not buy the argument that he had standing as a “potential future defendant”.

The Does case was also dismissed as the injury they claimed was entirely speculative.

But Jane Roe was given standing despite no longer being pregnant the the time of the Supreme Court hearing. As the opinion notes, the schedule of the judicial system is not as certain as the period of gestation. Therefore the usual rule requiring an actual controversy at the time of appeal was waived and the end of her pregnancy did not moot her case.

Section V briefly outlines the theory of the case which holds that preventing a pregnant woman from obtaining an abortion violates her Fourteenth Amendment right to personal liberty. The most critical case was Griswold v. Connecticut which found unconstitutional a Connecticut law that denied married couples contraception. Griswold was decided just 8 years earlier and has obvious parallels. The primary difference is that contraception is intended to prevent life from occurring and abortion is intended to end the existence of a fetus.

Section VI begins a long survey of the history of abortion laws and attitudes going back to the Persian Empire. The purpose of the this section is to demonstrate that:

Those laws, generally proscribing abortion or its attempt at any time during pregnancy except when necessary to preserve the pregnant woman’s life, are not of ancient or even of common law origin. Instead, they derive from statutory changes effected, for the most part, in the latter half of the 19th century.

There’s lots of interesting material there, but what I find most puzzling is the discussion concerning “quickening”—the moment when the mother first notices her unborn child’s movement. It was believed quickening marked the beginning of life. We now know that a unique human life forms shortly after conception when genetic material from the mother and father fuse into a double helix of DNA.

Section VII proposes three possible reasons for states to enact laws restricting abortions:

1. to “discourage illicit sexual conduct”,
2. to protect women from the hazards of the procedure, and
3. to protect human life.

The Court noted that the first reason did not apply to the Texas statute and, even if it did, would not be a good reason. The second concern has been reduced by advances in medical technology, but is valid—especially late in the pregnancy when risk is greatest. It is the final reason that remains in dispute. Either life (or at least potential life) begins at conception or the quickening distinction “tacitly recognizes the greater health hazards inherent in late abortion and impliedly repudiates the theory that life begins at conception.”

Section VIII goes over case law that sets the standard for overriding a pregnant woman right to privacy to be a “compelling state interest”. Critically:

We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified, and must be considered against important state interests in regulation.

Of the three state interests considered, the health and safety of the mother and protecting prenatal life are the only two that might be compelling.

Section IX bears careful reading because it considers the critical question of whether or not a fetus is a “person”, which would provide the state with a compelling interest to proscribe abortion at any stage of pregnancy. It is divided into two points:

A. considers the question of whether a fetus is a person according to the Constitution and therefore protected by the Fourteenth Amendment, and

B. considers the question of whether a fetus is a person apart from the Constitutional question.

On the one hand, the court notes some difficulty in answering these questions:

We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.

But in the end concludes with this definitive assertion:

In short, the unborn have never been recognized in the law as persons in the whole sense.

Section X draws the logical conclusion from the foregoing:

With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.

Section XI summarizes the details of the Court’s opinion:

1. Before the end of the first trimester, the decision to abort is left to the pregnant woman’s physician.
2. Beginning in the second trimester, states might choose to regulate abortions in order to protect the health of the mother.
3. Once the fetus reaches viability, states may regulate or even outlaw abortions except when the life or health of the woman is at stake.

Section XII outlines the effect of the ruling on the various parties.

And that’s it. When you get right down to it, the critical question that the Court tasked itself with answering is what legal status a fetus has in this country. And it concluded that since they are not “persons in the whole sense”, they have no legal standing. As long as they are entirely dependant on the mother for their very existence, the mother and her physician can chose to destroy the unborn.