Posted: November 20, 2013
nder the leadership of Chief Justice Warren Burger, who joined it in 1969, the Supreme Court departed from the course taken during the 16-year tenure of his predecessor, Earl Warren. The Burger Court rolled back precedents in criminal procedure and obscenity, while stopping the drive to universalize welfare rights and equalize public schooling expenditures. Roe v. Wade (1973), on the other hand,extended the Warren Court's deepest commitments: sexual liberation, obviously; equality, with respect to both race and class; and even church-state separation, insofar as the Roe Justices identified opposition to abortion with Catholic dogma. These more or less "progressive" values were concisely expressed by retired Justice Tom Clark, in a law review article the Roe Court cited and upon which the Justices relied, according to their inter-chambers memoranda. Clark wrote, "We are in the midst of a worldwide movement to make ‘the pill' and abortion available in the slums as well as on Fifth Avenue."
Clark highlighted a recurring Warren Court theme scholars have often neglected: "morals laws" were one means by which the hypocrites on Fifth Avenue keep poor folks down—especially poor black folks. This was thought to be true of gambling prohibitions (elites traded with respectable bookies while ghetto numbers-runners got busted), some sex offenses, and vagrancy laws. In 1968's Levy v. Louisiana, which established "illegitimacy" as a quasi-suspect class, dissenting Justice John Harlan sympathized with reasonable state efforts to promote marriage and stable family life by requiring, for example, that a biological father acknowledge and thus "legitimate" a "bastard" child to trigger certain inheritance rules. The majority Justices brusquely denounced these laws as nonetheless punishing innocent babies for the "sins" of their parents.
Warren Court holdovers—William Douglas, nominated to the Court by Franklin Roosevelt; William Brennan and Potter Stewart, nominated by Dwight Eisenhower; and Thurgood Marshall, nominated by Lyndon Johnson—constituted a majority of the seven Justices who rewrote abortion law in Roe. Among them, Justices Brennan and Douglas were especially active in shaping the Court's opinion. Nixon appointees were nonetheless crucial to the outcome: Harry Blackmun wrote the majority opinion; Burger joined in the outcome; and Lewis Powell, along with Potter Stewart, was an unwavering supporter of the final, sweeping Blackmun opinion.
Liability and Viability
Indeed, one can only account for that sweep—effectively, it was abortion-on-demand until birth, when the companionDoe v. Bolton's expansive definition of the "health" exception is taken into account—by a commitment upon which Earl Warren could stake no special claim: the perilous place of physicians in Tom Clark's Upstairs/Downstairs metropolis. Before 1973, as Clark and some on the Roe Court saw things, it teemed with tolerated—though legally prohibited—abortions, almost all of them performed by licensed doctors who were exposed to arrest. By 1973 several states' abortion law included exceptions for maternal health and fetal deformity, which depended upon medical judgments that could be second-guessed any time by a malpractice jury, or punished by an incensed local prosecutor.
Former counsel to the Mayo Clinic Harry Blackmun felt this worry most keenly. The Court's internal correspondence shows it spreading to other chambers. Fretting over doctors' potential liability, more than any concern for women's privacy rights or gender equality, led the Court to mandate abortion-on-demand.
How? Clarke Forsyth's superb new history of the Roe decision, Abuse of Discretion: The Inside Story of Roe v. Wade, shows convincingly that the Court easily concluded that abortion should be legal during the first three months of pregnancy for the reason given by Tom Clark: women downtown should have the sort of easy access that uptown folks did. The Court moved beyond three months, Forsythe shows, because the Justices came to believe that a more educated, well-off woman would typically understand that she was pregnant, take stock of her situations, and decide for or against abortion, all within 90 days. Poorer, less-schooled women with limited access to good medical advice, the jurists further thought, would often need more time. And so "viability"—the term Roe made famous but which before 1973 had almost no standing in either law or medicine—became the criterion determining the legal status of abortion, decisions regarding which were to be the sole province of the expectant mother and her consulting physician. Its appeal to the Roe Court was thus not principally that a six-month-old unborn child was "viable" outside the womb. That was a rhetorical bonus: "viability" was a convenient way to describe the judgment that six months was enough time for any woman to make up her mind.
Except for when there was some "health" urgency: the Roe/Doe Court never seems to have seriously doubted that "therapeutic" abortions would be legally available until birth. But how should this "health" exception be defined? The only sure way to eliminate liability was to eliminate legal criteria which distinguished between lawful and unlawful abortions, or—the same thing, effectively—list sundry criteria for "lawful" abortions, but then declare them all to be aspects of agent-specified "health" and "well-being", and thus matters lying entirely within the doctor-patient relationship.
There is nothing compassionate, liberal, or even edifying about these stipulations. And nothing prophetic: the worry about doctor-patient relationships subsided soon after Roe, when abortion became the specialty of a tiny number of doctors, operating at the margins of the profession.
Roe might also seem to exemplify the "idea of progress," the Warren Court's defining characteristic according to the 1960s' most eminent constitutional scholar, Alexander Bickel, the author of The Supreme Court and the Idea of Progress (1970). Those Justices bet on the future, Bickel maintained, "in the belief that progress, called history, would validate their course, and that another generation, remembering its own future, would imagine them favorably." They gambled that a grateful populace would forgive their undisciplined opinions, often remotely connected to the Constitution. The Justices' flaccid reasoning would soon be forgotten, as would be the law dons who criticized the Court, the moral conservatives who denounced it, and the unreconstructed politicians who vowed to overturn its errant holdings.
This was Lewis Powell's wager on Roe, according to University of Virginia law professor John Jeffries, who clerked for Powell and who later wrote the authorized biography, Justice Lewis F. Powell, Jr. (1994). Jeffries asserts that Powell forgave the manifest defects of Blackmun's Roe opinion, betting that "the idea of progress" would shortly erase them from memory. There was a lot to erase: John Hart Ely declared the Roe opinion "is not constitutional law and gives almost no sense of an obligation to try to be." He compared Roe to Lochner v. New York (1905), which was then runner-up to Dred Scott v. Sanford (1857) as the bête noire of American constitutional history. This really stung: Ely was the nation's leading young constitutional scholar (he was 34 when he wrote "The Wages of Crying Wolf," the most influential law review article on Roe); he identified himself as "pro-choice"; and he had clerked for Earl Warren, the personification of analytical laxity.
Ely's criticism was basically the same as that of today's judicial conservatives: Roe is scarcely law at all; it amounts to a because-we-say-so policy pronouncement. Like Bickel, who criticized Roe as a scandalously results-oriented decision, conservatives say it is an expansive exercise in judicial philosophizing, one that created a constitutional right out of whole cloth, for which the antidote is a heavy dose of more workmanlike legal reasoning. In this conservative critique, the basic problem with Roe is that the Justices imagined themselves to be Platonic Guardians, who would rule the people justly and wisely while disregarding the plebeian task of merely interpreting the Constitution. The problem with Roe is that the Justices engaged in legislative policymaking, backed up by moral philosophy that was scarcely camouflaged by scraps of legal reasoning cluttering up the opinion.
Jeffries writes that Powell's "colleagues" shared his "vision and confidence in their own foresight." He provides little evidence for that doubtful claim, however. Some Roe Justices might have felt a cultural tailwind, and figured that Roeanticipated the future. But it is more certain that they all sensed the momentousness and fragility of the present occasion, due precisely to a political climate hostile to abortion. They knew they were being put to the test on this one. The opinion in Roe had to be especially convincing.
It is also true that Chief Justice Burger opined in the Justices' conference that the Texas law struck down in Roe was "archaic and obsolete." But that does not mean that Burger thought he was kicking in a rotten door, as the entire Court did with the "uncommonly silly" law struck down in Griswold v. Connecticut (1965), a phrase which Justice Potter Stewart used to describe a statute prohibiting contraception, even by married couples. (Stewart dissented in Griswold, believing that even a silly law can be constitutional, but was full-throttle for abortion liberty in 1973.) Even the Catholic hierarchy did not mourn the Connecticut law's demise. Griswold is most remembered now for Justice Douglas's notorious reflections on "emanations" from the Bill of Rights' "penumbras." What's missing from Jeffries's claim is an essential premise of Bickelian "progress": that Roe was understood by the Justices to be a lax and forgettable excuse for judicial legislation, which institutional etiquette required to be accompanied by an "opinion" steeped in law, precedent, and legal reasoning.
The Roe opinion was actually a maximum legal effort. The case marinated in the Court for almost two years, during which it was fully argued twice. Blackmun worked feverishly for nearly a year on what became the majority opinion. Other chambers were engaged and helpful, especially those of Brennan and Douglas. The Justices that term were blessed with several clerks who went on to become distinguished law professors, including Mark Tushnet, Randy Bezanson, and Louis Michael Seidman. Blackmun relied heavily upon his clerk George Frampton, later a very accomplished government lawyer.
The published opinion could scarcely have been vetted more thoroughly. No desultory essay in political or moral theory, it is a serious (though flawed) work of (mostly, in the important respects) legal scholarship, remarkably free of bombast. TheRoe Justices considered it a triumph of legal reasoning over emotion and moralism, and believed it somehow fulfilled precedents, including Griswold, which they recognized did not compel Roe's result. The opinion was meant to illuminate, persuade, and to settle. It was meant to be what the New York Times called it the very next day: a "historic resolution" of an intractable social and political issue.
The Roe Court provided the interpretive key when it announced: "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." This "resolve" signaled Roe meant to be law all the way down, the sort of legal reasoning that skirted all the disputed questions in other disciplines.
In the event, Roe flopped. Like so many flops, its producers were surprised and disappointed. But, pace Jeffries, Ely, and today's judicial conservatives, the Roe opinion failed precisely as law. It was an earnest attempt to resolve the abortion question according to a distinctively legal way of reasoning.
In fact, the strongest criticism of the decision is that at the two key points of the opinion Roe is too legal and not nearly philosophical enough. Both have to do with how the Roe Court handled the question of whether unborn human beings counted as "persons." The first point was about "person" as used in the 14th Amendment—more specifically, whether the unborn count as "persons" with a right to the "equal protection" of the laws. (The Roe Court spoke of the Due Process Clause, but the concept which they evoked was equal protection.) The second had to do with whether, apart from the 14th Amendment, states could recognize the unborn as "persons" within the meaning of their homicide laws.
These two points overlap in some ways. But they are conceptually distinct, and Roe treated them separately. The RoeCourt concluded that "person" as used in the 14th Amendment did not include the unborn. This conclusion was important because, as the Court plainly stated, the case for abortion liberty would otherwise "collapse." Blackmun wrote that the "fetus' right to life would...be guaranteed specifically by the Amendment." The Court said that if the unborn were recognized as constitutional persons, then only abortions to save a pregnant woman's life could be consistent with equal respect for the life of the unborn.
Forsythe tells us that at the second oral argument of Roe, Potter Stewart "jumped on" the attorney for Texas when he raised this point. Stewart asked,
Now how should that question be decided? Is it a legal question? A constitutional question? A medical question? A philosophical question? Or, a religious question? Or what is it?
The state's lawyer had just answered that question: it was all of them, save "religious." He had just asserted that "upon conception, we have a human being, a person within the concept of the Constitution." That is, "we have" a scientific event ("conception") constituting a new metaphysical entity ("human being"), which was perforce a philosophical being ("person") and therefore a person for legal and constitutional purposes. Simply put, "we have" a situation where the law was transparent for the non-legal (philosophical, scientific) truth of the matter.
The Court handled this problem quite differently. Blackmun took readers through a legal maze walled off from the outside worlds of science and philosophy. "The Constitution does not define ‘person' in so many words," he wrote. Indeed it does not, and so the "definition" of "person" would seem to depend upon the reality of the matter. Blackmun instead sought a definition of "person," or an answer to the question about when persons begin, by scanning the Constitution for references to "persons."
Blackmun found many such references. All of them predicated certain duties, advantages, eligibilities, or penalties of "persons." Blackmun's inquiry yielded such data as that slaves are "persons" in the Fugitive Slave Clause and in the infamous three-fifths apportionment compromise, and that age qualifications for president and members of Congress specified that only older "persons" could hold those offices. These stipulations have no tendency to define who or what isa person, however, any more than a law saying that "no person may obtain a driver's license before attaining eighteen years of age" establishes that the term "person" does not include pedestrians, or children. Blackmun nonetheless concluded that the constitutional term "person" had no pre-natal application.
Potter Stewart anticipated this conclusion during the October oral argument. He challenged the Texas lawyer, saying that the 14th Amendment "defines ‘person' as somebody who's born." But it does no such thing. Neither it nor any other provision of the Constitution defines "person." Section I of that amendment defines "citizen" as a "person born or naturalized in the United States." But this has no tendency to define "person," or how such an entity is to be distinguished from other sentient creatures, or when "persons" begin, or end—save that "persons" are beings who can become "citizens." A law stipulating that "all persons who step foot on Ellis Island are thereby citizens of the United States" does not imply that living human individuals swimming nearby are not (or are not yet) "persons." So too a constitutional clause conferring "citizen" status according to the location of a "person's" birth does not imply that babies in the womb are not, or not yet, persons.
When the 14th Amendment refers to "persons" it points to and incorporates a moral reality. That is the most natural reading of the term "any person." It was the obvious sense of the Texas attorney's assertion at which Stewart "jumped." The only way to make sense of the amendment is to understand "person" as an exhaustive reference to a natural kind, because anyone can see that the 14th Amendment's guarantee of "equal protection" for all "persons" could be nullified if a public authority "defined" some human individuals as non-persons.
The historical record confirms these more general considerations. Ohio's John Bingham sponsored the 14th Amendment in the House of Representatives. During debate over what is now Section I he said that its coverage was "universal." It applied, Bingham declared, to "any human being." Bingham's counterpart in the Senate, Senator Jacob Howard, emphasized that the amendment applied to every member of the human family. Typical of the relevant phrases reported in newspaper coverage of the congressional debate and state ratifications were "all men," "all persons," and "all men as equals before the law of God and man." Indiana Governor Oliver Morton, addressing a large crowd in July 1866, declared that Section I "intended to throw the equal personal and proprietary protection of the law around every person who may be within the jurisdiction of any state." Two weeks later the New York Times said: "The equal protection of the laws is guaranteed to all, without any exception."
This prevailing spirit of inclusion is captured in an Iowa judicial opinion, handed down in 1868, the year the 14th Amendment was ratified. This state Supreme Court said that the common law is "to be commended, for its all-embracing and salutary solicitude for the sacredness of human life and the personal safety of every human being." The court wrote that "[t]his protecting, paternal care, envelop[s] every individual like the air he breathes," and it "not only extends to persons actually born, but, for some purposes, to infants in ventre sa mere [in a mother's womb]."
The Roe Court nonetheless made it as clear as it could that the philosophical truth of the matter—whether the unborn arereally persons—was irrelevant to whether they had an equal constitutional right as "persons" not to be killed. The Court similarly walled off the second controlling point—about whether states could legislate against abortion, even if the Constitution did not itself prohibit it—from the relevant philosophical truth. The Roe opinion explicitly justified abortion liberty in the pregnant woman's concrete experiences, the "distressful life" the state would, according to the majority, impose upon her by denying the choice to abort. Roe listed seven types of "detriment":
Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.
Only one of these "detriments" (the first) surely pertained to carrying a child in the womb. Another was ambiguous. (Was the "imminent" "psychological harm" pre- or post-partum, or both?) So, we could say that five and a half of the seven detriments had to do, not with carrying a child to term, but with the challenges of raising him or her. As Justice Douglas said, in his concurring opinion, it is childbirth, not pregnancy, which might "deprive a woman of her preferred lifestyle and force upon her a radically different and undesired future."
Of course these "detriments" resolved nothing in Roe by themselves. If they could, not only abortion but infanticide would be legally justified. Roe never suggested the listed detriments were new, and they weren't. For what reason, then, could these undeniable challenges of parenting now justify legalizing abortion? Besides, what is the sense of saying, as Roe did, that the state would "impose" them upon a woman? After all, the psychological and emotional stress of raising a child arises naturally, not by dint of government action.
The Roe court nonetheless pivoted upon the catalogued trials of parenting. Against these common experiences stood—as some Justices said in internal correspondence—an abstract, speculative possibility, some concept of "potential" or inchoate life about which there was no consensus of opinion in society. In the face of such disagreement, "the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer."
Jeffries observes that, for Powell, the
idea that a fertilized embryo was a fully recognized human life would always seem to him unacceptably remote from ordinary experience. That this belief was closely associated with the Catholic Church only made it easier for him to dismiss. No argument would have persuaded Powell that the disturbing realities of unwanted pregnancy and back-alley abortion should be subordinated to religious dogma.
Others on the Roe Court might have shared Powell's identification of anti-abortion sentiment with the Church's "dogma." William O. Douglas's crude anti-Catholicism, vividly displayed in several of his church-state opinions, suggests he did. (TheTimes front-page report of the Roe decision was flanked by another about "reaction" to it. The title of that story was "Cardinals Shocked"—and it was not an item escaped from the sports pages.) The important point is that the whole Court bought into the same epistemological diagram: the hard "reality" of unwanted parenting, versus an idea, theory, or doctrine—all matters of unverifiable opinion—about when people begin.
The Justices' notion of the properly legal way to think about this situation led them straightaway to abortion rights. WhileRoe was being considered Brennan wrote in a memorandum to Douglas that "moral predilections must not be allowed to influence our minds in setting legal distinctions," here quoting Tom Clark who quoted Oliver Wendell Holmes. "The law deals in reality not obscurity—the known rather than the unknown. The law does not deal in speculation." Clark opined that, because the fetus "cannot interact with other human beings...there is no proof of life in the sense that the law contemplates proof of fact." Roe concluded that the state may not "by adopting one theory of life...override the rights of the pregnant women that are at stake."
On this second controlling point, then, a state's latitude to protect the unborn, the philosophical truth about persons was rendered invisible, just as it was on the first about constitutional persons. On the first, the Court treated "person" as a legal term of art to which the truth was utterly irrelevant. The legal lexicon and not the truth about reality would be the judge's exclusive guide. On the second, the truth makes an appearance. It debuts, though, not as a term transparent for a flesh-and-blood reality—namely, an unborn human being—but rather as a ghost-like apparition, as an unmoored speculation or unverifiable hypothesis, practically weightless when compared by the Court to the grim "realities" of unwanted parenting—as if the truth about "person" was a brooding presence in the sky. In Roe the truth about the unborn is not a claim about reality. It is just a claim. That people begin at fertilization is not a proposition—either true or false. It is a report about someone's opinions.
Stuck in Time
Once the Supreme Court burrowed this far into solipsistic legalism, they slipped easily into agreement with District Judge Jon Newman's analysis in Abele v. Markle, a 1972 abortion-rights decision cited by Roe as instructive. Newman invalidated an abortion-restrictive statute as an impermissible "state regimentation of thought," akin to making schoolchildren salute the flag. How could the Roe Justices say that the "state" must not visit so many "detriments" upon expectant mothers? Newman answered the question for them: "To uphold such a statute would permit the state to impose its view of the nature of a fetus upon those who have the constitutional right to base an important decision in their personal lives upon a different view."
The Roe Court's long slog through the legal weeds yielded up a proposition equivalent to that asserted by Judge Newman: restrictive abortion laws are a sort of government mind-control. Texas would foist its own (unverifiable) opinion about when people begin upon hapless women possessed of a different opinion and who would bear the "detriment[al]" consequences. Or maybe not. The Roe Court now appears to be stuck in time. Those Justices strove mightily to convince Americans that they misconceived the question presented. The Court maintained that abortion laws were not really about the ethics of killing (as all the state laws struck down in Roe implicitly affirmed), but about the injustice of imposing a state orthodoxy.
Sonograms (more than anything else) have since 1973 confirmed that the people were right. Now the argument about abortion laws is about whether women are justified by the projected "detriments" of being a mother in terminating what almost everyone now recognizes to be a human being with a prima facie right to life.