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Roe + Doe = Abortion on Demand
Wednesday, October 5, 2005 - By ALL
Under the Supreme Court's 1973 rulings in Roe v. Wade and Doe v. Bolton:

  1. A state may regulate second- and third- trimester abortions.
  2. A state may prohibit third-trimester abortions, unless one is necessary for the life or health of the mother.
  3. All abortions are legal through the full nine months of pregnancy.
  4. All of the above.

The answer, of course, is D.

Confused? Welcome to the world of Roe and Doe, an Orwellian place where some humans are more human than others, where pregnant mothers do not carry children, and where courts are legislatures.

While the Court has slightly modified Roe/Doe, the core holdings that gave us abortion on demand remain in effect.

What Roe and Doe said

The Supreme Court declared in Roe that the United States Constitution grants a woman a "right" to have an abortion. Specifically, the Court held that the so-called right to privacy that had previously been attached to the Fourteenth Amendment's due-process clause "includes the abortion decision."

The Court went on to declare abortion not just a right, but a "fundamental" right. That is, one that a state may not restrict unless it is protecting a "compelling" interest.

The significance of this classification is crucial. If a right is not deemed "fundamental" by the Court, a state may limit that right by demonstrating that its legislative restriction has a "rational basis" in promoting a state interest.

What this legalese boils down to is that it is considerably easier for a state law to be upheld using the "rational basis" test than if a "compelling interest" must be shown. Only once in a blue moon, if then, would the Supreme Court ever find a state interest to be "compelling" enough to permit the curtailing of a "fundamental" right. The court in Roe doomed in advance virtually any law that attempted to prohibit any abortion.

Still, Justice Harry Blackmun, in writing the majority opinion in Roe, was not content merely to declare Texas's abortion statute unconstitutional. He set forth his own scheme for legislation, the now infamous trimester approach to abortion law.

Trimesters: Distinctions signifying nothing

With Roe the Supreme Court found a way to outdo Solomon - it announced it would divide the life of a preborn baby into three, and not with a sword, but with a calendar.

The Court decreed that in the first three months of pregnancy (i.e., the first trimester), "the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician."

In the second trimester of pregnancy, the state's interest in protecting the health of the mother becomes "compelling" and, therefore, laws may "regulate the abortion procedure in ways that are reasonably related to maternal health."

Finally, when the baby becomes viable (i.e., the baby is, in the Court's words, capable of "meaningful life outside the mother's womb"), the state's "interest in the potentiality of human life" also becomes "compelling." At that point, the state may "regulate, and even proscribe, abortion except where it is necessary . . . for the preservation of the life or health of the mother."

The casual reader may have the impression, upon reading this last clause, that states may make it legally difficult for women to obtain third-trimester abortions. That impression is false, because the Court saved the "fine print" on abortion for its Doe v. Bolton decision.

What does "health" mean?

Doe v. Bolton is the key that unlocked legal abortion on demand through all nine months of pregnancy. It was Roe that said states could prohibit post-viability abortions except those for "the life or health of the mother," but it was Doe that defined "health."

According to Justice Blackmun's Doe opinion, in determining whether an abortion is necessary for a woman's health, a doctor's judgment "may be exercised in the light of all factors - physical, emotional, psychological, familial, and the woman's age - relevant to the well-being of the patient."

Thus, under Doe, if a woman's pregnancy is causing her "emotional" problems, she may legally abort her child in the ninth month. This would be an abortion for reason of "health."

Baby? What baby?

Lost in most of the Roe and Doe decisions is the object of abortion, the preborn child. While the Court refers to a pregnant woman as a "mother," it refers to the baby in the womb as "the developing young" or "potential life."

In addressing the argument that the preborn child is a "person" deserving of protection under the Fourteenth Amendment's due-process clause (which says no state shall "deprive any person of life, liberty, or property, without due process of law"), the Court simply glosses over the scientific evidence of the preborn baby's humanity and writes him or her off as a Constitutional non-person.

Justice Blackmun drew this conclusion from three points. First, the Constitution does not define the word "person." Second, he said that the word "person," as used in the Constitution, in nearly all instances, "has application only postnatally." Finally, he opined that "throughout the major portion of the 19th century, prevailing legal abortion practices were far freer than they are today."

This final justification is interesting. One wonders if Justice Blackmun would consider slaves "persons," given that the legal sale of human beings was also "far freer" throughout most of the 19th century than it is today.

Nevertheless, the personhood of the preborn, which Justice Blackmun admitted would, if established, guarantee Constitutional protection for children in the womb, was rejected.

If the Constitution couldn't protect the baby, could a state?

Once it dismissed the biological fact of the preborn's personhood, the Court then had to decide whether a state could decide on its own to protect preborn babies, even if the U.S. Constitution, as interpreted by the Court, wouldn't.

The state of Texas, whose law was challenged in Roe, argued that life begins at conception and that, therefore, the state had a compelling interest in protecting that life.

It is here that Justice Blackmun wrote perhaps the most infamous line from Roe: "We need not resolve the difficult question of when life begins." Blackmun declared that since "medicine, philosophy, and theology are unable to arrive at any consensus" as to when a human comes into existence, the Court would not speculate.

Casting aside the curious implication that the Supreme Court, as then constituted, would even look to theology to reach a decision, one is immediately reminded here of the California Medical Association. It said less than three years before Roe and Doe:

In defiance of the long-held Western ethic of intrinsic and equal value for every human life regardless of its stage, condition or status, abortion is becoming accepted by society as moral, right and even necessary. It is worth noting that this shift in public attitude has affected the churches, the laws and the public policy rather than the reverse. . . . The result has been a curious avoidance of the scientific fact, which everyone really knows, that human life begins at conception and is continuous whether intra- or extra-uterine until death.

Since the Court held that "when life begins" is an open question, Texas's "theory of life" could not override the Constitutional rights of a woman to have an abortion. In other words, the state could not outlaw abortion based upon its "interest" in preborn babies because its "interest" was held to be unprovable, much less "compelling."

Conclusion

Chief Justice Warren Burger, in his concurring opinion in Roe and Doe, wrote, "Plainly, the Court today rejects any claim that the Constitution requires abortion on demand."

"Abortion on demand" may have been too strong a phrase for the Court to accept. Yet, 45 million abortions later, it's difficult to characterize the system that the Court created in any other way. Because of Roe v. Wade and Doe v. Bolton, any woman may legally abort her child at any time before her baby is born.

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