Roe Versus Wade: Who Was Right?
Roe v Wade was decided almost 50 years ago. Apparently, it’s now about to be overturned (https://www.cnn.com/2022/05/02/politics/roe-v-wade-supreme-court/index.html). Now is a good time to ask: Who was right in the original case?
Aside: The Roe majority consisted of 3 Republicans and 4 Democrats; the minority contained 1 Democrat and 1 Republican. I guess back then, people thought issues through, rather than just voting on party lines.
I’m not asking who was morally right, which is a difficult question (https://fakenous.net/?p=392), but who was “legally right”. I.e., what did the existing law, especially the Constitution, imply about abortion laws?
(Note to John T. Kennedy: Yes, I know that the decision could be morally justified even if legally incorrect. You don't have to point that out every time someone mentions a legal opinion.)
TL;DR: I think the decision is legally defensible, but it rests on some very disputable judgments. Also, neither the Supreme Court nor almost anyone else (other than libertarians) supports the principles that Roe rests on in other contexts, so the Court was probably just rationalizing.
1. The Roe Argument
My summary of the Roe decision follows. (Parenthetical page references are to the Roe opinion, 410 U.S. 113 (1973) (https://scholar.google.com/scholar_case?case=12334123945835207673); see esp. 152ff.).
1.1. There Is a Right to Privacy
There is a general Constitutional right to privacy, implied by the 14th Amendment (sec. 1), particularly the bolded clause below:
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." (emphasis mine)
That protects personal liberties that are “fundamental” or “implicit in the concept of ordered liberty” (152). The freedom to abort a fetus is one such liberty, due to the large, personal burden involved in continuing a pregnancy.
They also mention the 9th Amendment as a possible basis for the right. The 9A says:
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
A lower court accepted this as establishing the right to privacy. The Supreme Court prefers to rely on the 14A, though they don’t deny that the 9A might also establish the right. (153)
1.2. The Right Isn’t Absolute
But the right to privacy isn’t absolute. It can be outweighed if there is a "compelling state interest", which could include the state’s desire to protect potential human life:
"[A] State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. … [T]he right of personal privacy includes the abortion decision, but … this right is not unqualified and must be considered against important state interests in regulation." (154)
"We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman … and that it has still another important and legitimate interest in protecting the potentiality of human life." (162; emphasis in original)
(I was pretty surprised to read that part.)
1.3. Fetuses Aren’t People
If fetuses were people, then banning abortion would clearly be fine, since the 14th Amendment establishes the right to life for “any person”. (156-7) However, fetuses are not people in the sense intended by the 14th Amendment. (157-8) There are no cases in the Constitution where the word “person” is used where it appears to include fetuses. Also, laws were pretty permissive about abortion in the 19th century, so people at the time the 14A was adopted would probably not have considered fetuses to fall under the term “person”. Also, in the law as of now (1973), fetuses aren’t generally treated like people; e.g., in most cases, you can’t sue someone for prenatally harming you. (161-2)
So it looks like fetuses aren’t legally “people”, and so they don’t have a right to life. (This is not denying that, as already granted above, the state might have an interest in protecting potential life; it’s just saying that the fetus itself does not have legal rights.)
1.4. When Does Life Begin?
We don’t know:
"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." (159)
(How can they prescind from this question yet still rule on abortion laws? I'm not sure.)
1.5. Abortion Restrictions Okay After Viability
So there’s a prima facie right to have an abortion, but it could be outweighed if the state has a sufficiently strong interest in stopping abortion. And the state has a legitimate interest in protecting potential life. This interest gets stronger as the pregnancy goes on. At the start, it’s only a weak interest which doesn’t outweigh a woman’s right to privacy. But after the fetus becomes viable, the state’s interest in protecting it becomes stronger, such that it’s now strong enough to possibly outweigh the woman’s privacy right, and so the legislature could legally ban abortion after that point. (163-4)
2. Objections
The preceding isn’t dumb as a piece of legal reasoning. But it is questionable at multiple points. To wit:
2.1. “without due process”
The crucial right to privacy that they rely on is supposed to be established by the following clause:
"nor shall any State deprive any person of life, liberty, or property, without due process of law." [emphasis mine]
Let’s say that the right to an abortion is included in the broad term “liberty”. Even so, that clause does not say that the government may not take away your liberty, or that they can’t do so without a compelling state interest. It says they can’t do it without due process.
So the argument would have to be that the anti-abortion laws were somehow enacted or enforced without due process. But no one claims that.
This would seem to destroy Roe’s case. However, I think the case is still defensible because of the Ninth Amendment, which alludes in a completely open-ended way to unenumerated rights. One could argue that one of the unenumerated rights is the general right of self-ownership, which is perhaps violated by abortion bans. Presumably, the 9A was not intended to be completely without effect. In order for it to have any effect, courts must sometimes enforce unenumerated rights. The only way to do that would be to use their own moral judgments about what rights we have (or perhaps what rights would have been recognized at the time of the founding?). So it is legally legitimate to entertain a purely moral argument that there is a natural right to an abortion.
2.2. Is there a Moral Right to an Abortion?
Of course, the claim of a natural right to an abortion is very disputable. One would have to argue that fetuses don’t have rights, or at least that the woman could still have a right to abort even if the fetus has rights (as Judith Thomson argues). The Court made no attempt to argue for either of these things.
2.3. Are Fetuses People?
The Court’s arguments that fetuses aren’t people are lame. First, it may well be that people in the 19th century were simply wrong in thinking that fetuses aren’t people. It’s not enough to just cite what people thought. They were wrong about a lot of things then.
The Court, I guess, assumed that the 19th-century people couldn’t have been wrong because it was just a semantic question (?). But this isn’t correct; there is a substantive issue about whether fetuses are persons. E.g., if everyone has a soul, and the soul enters the fetus at point A during the pregnancy, then that would be a strong argument that the fetus is a person after but not before point A. That shows that it's a substantive question.
Alternately, maybe the Court thought that it was a matter for the law to decide whether fetuses are legally “people”, regardless of what the objective facts might be. Maybe they thought “people” has a special legal sense?
But then it’s odd that they didn’t consider the Texas law itself (the very law that was being challenged in Roe v. Wade) as showing that fetuses are legally people, in Texas. Courts generally accept that legislatures can alter the law from what the common law was. So even if in common law, or in 19th century law, fetuses were not people, why couldn’t the Texas legislature change that and make them people?
2.4. Who Cares About Viability?
Once you grant that there is a legitimate state interest in protecting potential life, it gets pretty tenuous to claim that abortion rights are protected up to, but only up to, a certain point in the pregnancy. Somehow, the state’s interest in protecting potential life gets stronger at the point that the fetus becomes viable? Why would that be?
2.5. Is it Sincere?
I suspect the Roe court (as well as its various progressive defenders) of indulging in rationalization. I don’t think they really believed the rationale they offered. That’s because I think the style of reasoning leads to lots of other conclusions that the Court came nowhere close to endorsing and that pretty much no one other than libertarians endorse.
The Court applied strict scrutiny to the abortion statute because of the very large personal costs involved in having to continue a pregnancy:
"The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. 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." (153)
That was considered enough to put abortion rights within the general right to privacy. That's the entire explanation. (Note that some of the cost they’re talking about seems to depend on assuming that the woman has to keep the child after birth, which she doesn’t; she can put it up for adoption. Also, note that the court was here protecting a general right to an abortion, not just for cases where the mother’s health is particularly threatened. So we should only count the costs that occur in normal cases even if you put the baby up for adoption.)
Under that standard, there should surely be a general right not to be imprisoned. Therefore, strict scrutiny should be applied to any statute that comes with a possible jail term as a punishment. As well as to any other statute that imposes on anyone costs comparable to the costs of pregnancy. Let’s just say that a lot of statutes would wind up being struck down. (Starting with the drug laws, obviously, but lots of other things too.) To libertarians, this sounds great!
But the Supreme Court has never come anywhere close to owning that implication, nor have generations of Roe defenders. So I think they do not actually believe in the general right to privacy. They were just conveniently grasping it to rationalize abortion rights, then immediately forgetting its radically libertarian implications. In that case, it really was, as the conservatives always said, a case of legislating from the bench.
3. Postscript
Some interesting things I learned from the Roe opinion:
Abortions were done (using abortifacients) in ancient Greece and Rome.
The Hippocratic Oath included a clause promising not to give abortifacients, apparently under the influence of the Pythagoreans, who were anti-abortion. But most people at the time accepted abortion.
Abortion was generally legally allowed in the English and U.S. legal traditions through the 19th century and into the 20th century, until around the 1950's, when some states started banning it. (In case you're among those complaining that Alito's recent opinion cites ideas from benighted people hundreds of years ago, note that Roe does likewise. Which is common practice in legal reasoning.)
Roe does not support the "my body, my choice" slogan; rather, it bizarrely portrays it as being the decision of the woman's doctor:
“[T]he attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated.” (163)
"Up to those points [viz., end of 1st trimester & viability], the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician.” (166)