Tuesday, January 25, 2005

Roe and Nonprogress

The anniversary of Roe v. Wade (January 22, 1973) recently passed. Some oft-forgot passages from the decision:

On the basis of elements such as these, appellant and some amici argue that the woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant's arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman's sole determination, are unpersuasive. The Court's decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one's body as one pleases bears a close relationship to the right of privacy previously articulated in the Court's decisions. The Court has refused to recognize an unlimited right of this kind in the past. Jacobson v. Massachusetts, 197 U.S. 11 (1905) (vaccination); Buck v. Bell, 274 U.S. 200 (1927) (sterilization).


The pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus, if one accepts the medical definitions of the developing young in the human uterus. See Dorland's Illustrated Medical Dictionary 478-479, 547 (24th ed. 1965). The situation therefore is inherently different from marital intimacy, or bedroom possession of obscene material, or marriage, or procreation, or education, with which Eisenstadt and Griswold, Stanley, Loving, Skinner, and Pierce and Meyer were respectively concerned. As we have intimated above, it is reasonable and appropriate for a State to decide that at some point in time another interest, that of health of the mother or that of potential human life, becomes significantly involved. The woman's privacy is no longer sole and any right of privacy she possesses must be measured accordingly.

I think there are a number of objective standards by which this decision is an utter failure (in Planned Parenthood v. Casey the decision was described as one in which "the Court's interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution" and its purpose to resolve an intensely divided controversy, whereas it isn't clear what 'common mandate' Roe actually gives to people on both sides of the divide, and it certainly hasn't resolved anything; on the other hand, Casey, which is rather pompous as decisions go, itself partly fails according to a standard it set, since part of the point of its upholding Roe was to prevent the weakening of the Court's legitimacy in the eyes of the people, which has certainly not been the result). Nonetheless, I think a certain respect for Roe is called for; for one thing, it seems to me a much better-reasoned opinion on its own terms than many of its successor opinions, which are sometimes astoundingly confused and scattered. Despite its sometimes problematic phrasing, Roe at least has the benefit of giving precise voice to the two issues that were seen to be at hand: the already-established right to protection from invasive regulation by the state and the state's regulative interests. Whether one agrees with Roe's reasoning or not (I certainly don't think the matter is as simple as the decision treated it, and think there is something to Rehnquist's dissenting claim that the decision formulated a rule of constitutional law broader than the precise facts of the case), these clearly are the major principles that need to be considered in coming to a decision. Its successor opinions have not always been so reasonable.

It would be nice, incidentally, if people in these sorts of controversies would not use Court decisions as symbols, but would instead actually read them. Verdicts made into symbols tend not to be thought through. What is needed is to make progress in the clarity of reasoning involved.

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